[2023] KEELC 251 (KLR)
The court held that it lacked jurisdiction to enter judgment on a party-to-party bill of costs taxed by the Deputy Registrar under section 51(2) of the Advocates Act, as this provision applies only to advocate-client bills of costs. The application was therefore incurably defective and incompetent. The proper...
Source-derived case information.
- Citation
- [2023] KEELC 251 (KLR)
- Parties
- Plaintiff: Engel Gisela t/a Engelcop Tours & Safaries; Defendant: Shabu Hamisi Mgandi; Defendant: Sheikh Ali Taib; Defendant: The Commissioner of Lands; Defendant: Municipal Council of Mombasa; Defendant: Ethics & Anti Corruption Commission
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 212 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Judgment on Taxed Costs
- Outcome
- application dismissed
- Judges
- NA Matheka
- Legal Topics
- Taxation of Costs, Party to Party Costs, Advocate Act Section 51, Execution of Costs, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Engel Gisela t/a Engelcop Tours & Safaries
Plaintiff
Shabu Hamisi Mgandi
Defendant
Sheikh Ali Taib
Defendant
The Commissioner of Lands
Defendant
Municipal Council of Mombasa
Defendant
Ethics & Anti Corruption Commission
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Judgment on Taxed Costs
Legal Issues
- 1 Whether the court has jurisdiction to enter judgment on a party-to-party bill of costs taxed by the Deputy Registrar.
- 2 Whether the application for judgment on taxed costs under section 51(2) of the Advocates Act is competent where the taxation was not in relation to an advocate-client bill of costs.
Ratio Decidendi
The court held that it lacked jurisdiction to enter judgment on a party-to-party bill of costs taxed by the Deputy Registrar under section 51(2) of the Advocates Act, as this provision applies only to advocate-client bills of costs. The application was therefore incurably defective and incompetent. The proper procedure for enforcing a party-to-party certificate of costs is through execution before the Deputy Registrar, whose decision is final unless set aside. Since the application did not follow the correct procedure and the certificate of costs had not been challenged or set aside, the court dismissed the application as unmerited.
Court Disposition
application dismissed
Orders
- The plaintiff's Notice of Motion Application dated June 22, 2022 is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
Engel Gisela t/a Engelcop Tours & Safaries v Mgandi & 4 others (Environment & Land Case 212 of 2012) [2023] KEELC 251 (KLR) (25 January 2023) (Ruling)
Neutral citation: [2023] KEELC 251 (KLR)
Republic of Kenya
In the Environment and Land Court at Mombasa
Environment & Land Case 212 of 2012
NA Matheka, J
January 25, 2023
Between
Engel Gisela t/a Engelcop Tours & Safaries
Plaintiff
and
Shabu Hamisi Mgandi
1st Defendant
Sheikh Ali Taib
2nd Defendant
The Commissioner of Lands
3rd Defendant
Municipal Council of Mombasa
4th Defendant
Ethics & Anti Corruption Commission
5th Defendant
Ruling
1The application is dated June 22, 2022 and is brought under section 51(2) of the Advocates Act and Order 51 Rule 1 of the Civil Procedure Rules, section IA, 1B, 3, 3. 4 of the Civil Procedure Act (chapter 21 of the Laws of Kenya) seeking the following orders;1. That Judgment be and is hereby entered in favour of the applicants for the total costs which were assessed by the taxing master at Kshs. 454,426. 28 together with interest at 12% per annum.2. That the Respondents bear the cost of this Application.
2It is based on the grounds that a Certificate of Costs was issued on August 19, 2021 and the same has not been challenged, disputed, set aside or altered. That the Party and Party Bill of Costs dated May 7, 2019 was heard to its logical conclusion and a ruling on the same delivered on September 19, 2019. That it is in the interests of justice, fairness and equity that this Honourable Court be pleased to allow this Application.
3I have perused the application and findthat this Honourable Court lacks jurisdiction to hear and determine the said application as it offends the provision of section 51 (2) of the Advocates Act since the taxation was not in relation to Advocate-Client Bill of Costs. The said section provides:The certificate of the taxing officer by whom any bill has been taxed shall, unless it is set aside or altered by the Court, be final as to the amount of the costs covered thereby, and the Court may make such order in relation thereto as it thinks fit, including, in a case where the retainer is not disputed,an order that judgment be entered for the sum certified to be due with costs.”
4The plaintiff's Notice of Motion Application dated June 22, 2022 is therefore incurably defective, bad in law and is incompetent and the Applicant ought to follow the normal execution procedures through the Deputy Registrar. The decision by the Deputy Registrar is final in a Party to party bill of costs unless set aside which is not the case in the instant case. The court cannot issue a judgement on party to party bill of costs as stated above. The application is not merited and is dismissed with no orders as to costs as the same is undefended.
5It is so ordered.
DELIVERED, DATED AND SIGNED AT MOMBASA THIS 25TH DAY OF JANUARY 2023. N.A. MATHEKAJUDGETABLEELC CASE NO 212 OF 2012 Page 1 of 1