[2010] KEHC 1793 (KLR)
The court held that as long as a reference challenging the taxation is on record and pending determination, it would be improper to entertain an application for judgment based on the certificate of taxation. The outcome of the reference could potentially alter or set aside the certificate, thereby affecting the...
Source-derived case information.
- Citation
- [2010] KEHC 1793 (KLR)
- Parties
- Applicant: Edwin K. Njagi t/a E.K. Njagi & Co. Advocates; Respondent: Lucy Waithera Mwangi; Respondent: John Irungu Githinji; Respondent: Julius Kariuki Mwangi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 516 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Judgment Pending Reference on Taxation
- Outcome
- application for judgment stayed pending outcome of reference
- Legal Topics
- Taxation of Costs, Advocate Client Bills, Stay of Judgment, Reference Under Rule 11
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edwin K. Njagi t/a E.K. Njagi & Co. Advocates
Applicant
Lucy Waithera Mwangi
Respondent
John Irungu Githinji
Respondent
Julius Kariuki Mwangi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Judgment Pending Reference on Taxation
Legal Issues
- 1 Whether judgment should be entered for the applicant based on the taxed bill of costs while a reference challenging the taxation is pending.
- 2 Whether the filing of a reference under Rule 11 of the Advocates Remuneration Order operates as a stay of judgment on the certificate of taxation.
Ratio Decidendi
The court held that as long as a reference challenging the taxation is on record and pending determination, it would be improper to entertain an application for judgment based on the certificate of taxation. The outcome of the reference could potentially alter or set aside the certificate, thereby affecting the basis for judgment. Therefore, the application for judgment should be stayed to await the outcome of the reference. Any irregularities in the filing of the reference should be addressed at the hearing of the reference itself.
Court Disposition
application for judgment stayed pending outcome of reference
Orders
- The hearing of the application for judgment under Section 51(2) of the Advocates Act is stood over generally, pending the outcome of the reference filed under Rule 11 of the Advocates Remuneration Order.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS) Miscellaneous Application 516 of 2009
EDWIN K. NJAGI t/a
E.K. NJAGI & CO. ADVOCATES ………………...………. PLAINTIFF
VERSUS
LUCY WAITHERA MWANGI
JOHN IRUNGU GITHINJI
JULIUS KARIUKI MWANGI …………...……...….. DEFENDANTS
R U L I N G
The application coming up for hearing is the one by notice of motion dated 28th June, 2010. The Applicant thereby seeks, inter alia, judgment against the Respondents in the sum of Kshs.32,447,332. 00 which was the sum allowed by the Taxing Officer on the Applicant’s Advocate-Client’s bill of costs.
When the matter was called out for hearing, Mr. Njuguna for the Respondent applied for the application to be stood over generally pending the hearing of his reference filed in Court on 9th July, 2010. In response, Mr. Kamwendwa for the Applicant submitted that the said reference was filed after 14 days in order to frustrate the application for judgment, and that a reference does not, in any case, operate as a stay.It was his further contention that the Respondents had filed a notice of Preliminary Objection which was an indication of their readiness to proceed with the hearing of the application for judgment.In his reply, Mr. Njuguna reiterated that their reference was filed in time, and that the Applicants were aware of its existence.He submitted that the application for judgment was meant to derail the Respondent’s reference which had already been given a hearing date.
I note from the Court record that the Applicant’s bill of costs dated 2nd December, 2009, was taxed on 14th June, 2010, and a certificate of taxation issued on 22nd June, 2010. Rule 11 (1)of the Advocates Remuneration Order requires that should any party object to the decision of the Taxing Officer, such party may within fourteen days after the decision give notice in writing to the Taxing Officer of the items of taxation to which he objects.The Taxing Officer should thereupon record forthwith and forward to the objector the reasons for his decision on those items and the objector may, within 14 days from receipt of the reasons, apply to a judge by Chamber Summons setting out the grounds of his objection.
In this matter, the bill of costs was taxed on 14th June, 2010. Three days later, i.e. on 17th June, 2010, the Respondents’ Advocates filed a notice of objection to the decision on taxation and requested for reasons.Mr. Njuguna stated from the bar that the Respondents received the Taxing Officer’s response on 7th July, 2010 and filed their reference on 9th July, 2010. As of now, that reference is fixed for hearing on 27th September, 2010.
In these circumstances, it is my considered view that as long as the reference is on record, it would be improper to entertain the application for judgment.Upon hearing the reference, the Court might well set aside or alter the certificate of the Taxing Officer, whereupon such certificate would cease to form a basis for judgment.I am therefore inclined to order that the application for judgment be stayed to await the outcome of the reference.If there was any irregularity in the filing of that reference, any such irregularity should be ironed out at the hearing thereof.
The hearing of the application for judgment under Section 51 (2)of the Advocates Act is accordingly stood over generally, pending the outcome of the reference filed under Rule 11 of the Advocates Remuneration Order.
It is so ordered.
Dated and delivered atNairobithis 21st day of July, 2010.
L. NJAGI
JUDGE