[2009] KEHC 3350 (KLR)
The court found that the application for enlargement of time to file an objection to the taxation of the bill of costs was brought over a year late without plausible explanation for the delay. The applicant had already litigated the issue on three previous occasions, and the court had previously found the bill of...
Source-derived case information.
- Citation
- [2009] KEHC 3350 (KLR)
- Parties
- Plaintiff: Esther Muthoni Gichobi; Defendant: Angelus Mbusi Immanuel; Defendant: Mwaniki Immanuel; Defendant: Njeru Immanuel; Defendant: Asquelina Immanuel; Defendant: Virginia Immanuel
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 34 of 2005
- Procedural Posture
- Civil Case / Ruling on Application for Enlargement of Time to File Objection to Taxation of Bill of Costs
- Outcome
- application dismissed with costs
- Judges
- J Karanja
- Legal Topics
- Enlargement of Time, Taxation of Costs, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Muthoni Gichobi
Plaintiff
Angelus Mbusi Immanuel
Defendant
Mwaniki Immanuel
Defendant
Njeru Immanuel
Defendant
Asquelina Immanuel
Defendant
Virginia Immanuel
Defendant
Procedural Posture
Civil Case / Ruling on Application for Enlargement of Time to File Objection to Taxation of Bill of Costs
Legal Issues
- 1 Whether the applicant has provided sufficient grounds for enlargement of time to file an objection to the taxation of the bill of costs.
- 2 Whether the application is an abuse of the court process due to inordinate delay and repeated litigation on the same issue.
Ratio Decidendi
The court found that the application for enlargement of time to file an objection to the taxation of the bill of costs was brought over a year late without plausible explanation for the delay. The applicant had already litigated the issue on three previous occasions, and the court had previously found the bill of costs to be properly drawn and taxed. The court held that the application was an abuse of the court process, as litigation must come to an end and the applicant's intended objection lacked merit. Consequently, the application was dismissed with costs to the respondents, and any orders of temporary stay of execution previously granted were vacated.
Court Disposition
application dismissed with costs
Orders
- The application dated 27/9/2006 is dismissed with costs to the respondents.
- Orders of temporary stay of execution granted earlier are hereby vacated.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Case 34 of 2005
ESTHER MUTHONI GICHOBI………………....…………….PLAINTIFF
VERSUS
ANGELUS MBUSI IMMANUEL……………………..1ST DEFENDANT
MWANIKI IMMANUEL………….…………………….2ND DEFENDANT
NJERU IMMANUEL………..…………………………3RD DEFENDANT
ASQUELINA IMMANUEL……........…………………4TH DEFENDANT
VIRGINIA IMMANUEL………..………………………5TH DEFENDANT
RULING
The Application dated 27/9/2006 is brought to court under Order XLIX Rule 6 and the ADVOCATES RULES II (1) (2). Prayer (c) is seeking enlargement of time for filing objection to the taxation of the Bill of Costs taxed by the taxing officer on 23/8/2005. It is premised on the grounds on its face and supported by counsel’s affidavit dated 27/10/2006. This application even on the face of it was brought to court slightly over 1 year late. Mr. Mugambi for the Respondent has opposed the same strongly terming it as vexatious and an abuse of the court process. I have considered the application, the said grounds and the affidavits for and against it. I have gone through the lower court record and have noted the following:-
1. That the notice of taxation was taken out by counsel for the respondent on 25/5/2005.
The Applicant was then acting in person and there is an affidavit of service dated 11/7/2005 showing that indeed she was served with the notice of taxation which clearly indicated the hearing date as 12/7/2005.
On 12/7/2005, the applicant failed to appear in court for taxation. The court found the service of the notice of taxation improper and ordered that the applicant be served again.
She was served on 16/8/2005 and another affidavit of service was filed. This time, the learned trial magistrate found the service proper and proceeded to tax the bill of costs. She found the same proper as it was drawn to scale and proceeded to tax it as drawn on 23/8/2005. After she appointed counsel, instead of him applying for the time within which to lodge the objection before the Deputy Registrar to be enlarged as he has done now, he filed an application for the bill of costs to be set aside. A preliminary objection was filed against that application. The same was allowed and so the application was struck out with costs on 20/12/2005. Almost 9 months later, he filed this application. That delay is definitely inordinate. It has not been plausibly explained. It seeks to bring back the same issue which the lower court has dealt with on 3 previous occasions. I agree with Mr. Gitonga that this application is totally an abuse of the court process. Litigation has to come to an end. The bill of costs taxed by the taxing officer was found to have been drawn to scale. Indeed even the objection she intends to raise is hardly meritorious. I find this application devoid of merit and dismiss the same with costs to the Respondents in the application dated 27/9/2006. Orders of temporary stay of execution granted earlier are hereby vacated.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 29th day of June 2009.
In presence of:-Mr. Muraguri for applicant. N/A for Respo.