[2017] KEHC 1243 (KLR)
The court held that the client.s application to set aside the ex parte taxation was incurably defective because it was brought under the Civil Procedure Act and Rules, which do not apply to taxation proceedings. The applicable law is the Advocates Remuneration Order, which provides a specific procedure for...
Source-derived case information.
- Citation
- [2017] KEHC 1243 (KLR)
- Parties
- Applicant: George Miyare t/a Miyare & Company Advocates; Respondent: Talanta Africa Media & Telecommunications Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 359 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Two Motions: One to Set Aside Taxation, One for Entry of Judgment on Taxed Costs
- Outcome
- Client's application to set aside taxation struck out with costs; advocate's application for entry of judgment allowed with costs.
- Judges
- JK Sergon
- Legal Topics
- Advocate Client Costs, Taxation of Costs, Setting Aside Ex Parte Orders, Applicability of Advocates Remuneration Order
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Miyare t/a Miyare & Company Advocates
Applicant
Talanta Africa Media & Telecommunications Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Two Motions: One to Set Aside Taxation, One for Entry of Judgment on Taxed Costs
Legal Issues
- 1 Whether the client.s application to set aside the ex parte taxation was properly brought under the Civil Procedure Act and Rules instead of the Advocates Remuneration Order.
- 2 Whether the advocate is entitled to judgment for the taxed costs as per the certificate of taxation.
Ratio Decidendi
The court held that the client.s application to set aside the ex parte taxation was incurably defective because it was brought under the Civil Procedure Act and Rules, which do not apply to taxation proceedings. The applicable law is the Advocates Remuneration Order, which provides a specific procedure for challenging taxation. Since the client did not follow this procedure, the application was struck out with costs. Regarding the advocate.s application for entry of judgment, the court found that a certificate of taxation had been issued for Ksh.115,686 and had not been set aside or altered. Under Section 51(2) of the Advocates Act, the court is empowered to enter judgment for the...
Court Disposition
Client's application to set aside taxation struck out with costs; advocate's application for entry of judgment allowed with costs.
Orders
- The client's motion dated 15th February 2016 is struck out with costs to the advocate.
- Judgment is entered in favour of the advocate for Ksh.115,686 as per the certificate of taxation, with costs to the advocate.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL MISC APPL. NO. 359 OF 2015
GEORGE MIYARE t/a
MIYARE & COMPANY ADVOCATES........................................ADVOCATE
-V E R S U S –
TALANTA AFRICA MEDIA & TELECOMMUNICATIONS LTD.......CLIENT
RULING
1) The subject matter of this ruling are two applications. The first application is the motion dated 15th February 2016 in which Talanta Africa Media and Telecommunications Ltd, hereinafter referred to as the client, sought for inter-alia the setting aside of the decision of the Taxing Officer assessing the Advocate-client Bill of Costs at ksh.11,685/= on 10. 02. 016. When served with the motion, George Miyare t/a Miyare & Co. Advocates filed a replying affidavit he swore to oppose the client’s application. The second application is the motion dated 3rd May 2017 taken out by the advocate in which he sought for entry of judgment in his favour in the sum of kshs.115,686 as per the certificate of costs. The aforesaid motion was served but the client did not deem it fit to respond. When the two applications came up for interpartes hearing this court directed parties to file written submissions. At the time of writing this ruling, the client had not filed any submissions.
2) It is appropriate to first consider the substance of the client’s motion dated 15th February 2016. I have already stated that the aforesaid motion basically seeks to have the order on taxation delivered on 10. 02. 2016 set aside. The background of the motion can easily be obtained from the material placed before this court. It is not in dispute that the firm of Miyare & Co. Advocates was instructed by the client to defend its interests in Nairobi C.M.C.C. no 3778 of 2015. The advocate thereafter filed his bill of costs to recover his fees from the client dated 18. 08. 2015. After several adjournments mostly instigated by the client, the bill of costs was eventually heard on 3rd February 2016. The same proceeded to hearing exparte when the client failed to attend court despite having notice of the hearing date. Hon. Makungu, the learned Taxing Officer assessed the advocate’s fees at kshs.115,686/=.
3) When the client learnt of the assessment of the advocate’s bill of costs as aforestated, it moved this court vide the motion dated 15th February 2016. The motion is supported by the affidavit of Geoffrey Eric Wesonga. The client seeks to have the order on taxation set aside and to be allowed to defend the bill of costs. It is the submission of the client that due to inadvertent mistake by its advocate, the date when the bill of costs fixed for hearing was not diarised hence their non-attendance. The client beseeched this court to set aside the exparte taxation proceedings and to order and permit it to defend the bill of costs. The advocate strenuously opposed the motion arguing that the client has invoked the wrong provisions of the law. It is argued that the provisions of the Civil Procedure Rules do not apply. This court was implored to strike out the application.
4) There is no doubt that the client has brought its application under Sections 3 and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Act. With respect, I agree with the technical objection raised and argued by the advocate that when it comes to taxation proceedings, the applicable law is the Advocates Remuneration Order. The Advocates Remuneration order has an elaborate procedure for parties to apply in challenging both the substance and process of taxation. It is therefore not open to any party to opt to use other laws and procedures which the Advocates Remuneration Order did not permit. I find the motion to be incurably defective. The same is ordered struck out with costs to the advocate.
5) Having disposed of the client’s motion dated 15. 1.2015, I now turn my attention to the advocate’s motion dated 3rd May 2017. In the aforesaid motion, the advocate has beseeched this court to enter judgment in his favour in the sum of ksh.115,686 being the taxed costs. The motion was served and the client did not deem it fit to file any response. The advocate/applicant has stated that a certificate of taxation dated 7th March 2016 has been issued for ksh.115,686/=. This averment is not controverted. Pursuant to the provisions of Section 51(2) of the Advocates Act, Cap 16 Laws of Kenya, this court is given the power to enter judgment for the amount certified to be due with costs unless the certificate of taxation is set aside or altered by the court. There is no evidence that the certificate of taxation has been set aside or altered by any court. Consequently the motion dated 3rd May 2017 is found to be meritorious. It is allowed as prayed with costs to the advocate/applicant.
Dated, Signed and Delivered in open court this 17th day of November, 2017.
J. K. SERGON
JUDGE
In the presence of:
................................for the Plaintiff
................................for the Defendant