[2018] KEHC 1948 (KLR)
The court found that the bill of costs was taxed by consent of the parties and a certificate of taxation was issued for Kshs. 1,850,000. The respondent did not challenge or set aside the consent or the certificate. The court held that it cannot rewrite the parties' agreement and that the certificate of taxation...
Source-derived case information.
- Citation
- [2018] KEHC 1948 (KLR)
- Parties
- Respondent: Grace Adhiambo Akumu; Respondent: The Independent Electoral & Boundaries Commission; Respondent: John Cox Lorionokou; Applicant: Rosa Akinyi Buyu
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Election Petition 2 of 2017
- Procedural Posture
- Election Petition / Ruling on Notice of Motion for Execution of Certificate of Costs as Decree
- Outcome
- Application allowed. Judgment entered for the applicant for Kshs. 1,850,000 plus interest and costs.
- Judges
- TW Cherere
- Legal Topics
- Taxation of Costs, Execution of Decree, Consent Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Grace Adhiambo Akumu
Respondent
The Independent Electoral & Boundaries Commission
Respondent
John Cox Lorionokou
Respondent
Rosa Akinyi Buyu
Applicant
Procedural Posture
Election Petition / Ruling on Notice of Motion for Execution of Certificate of Costs as Decree
Legal Issues
- 1 Whether the certificate of costs issued on 25.7.18 should be executed as a decree of the court.
- 2 Whether the applicant is entitled to judgment for the taxed costs and interest against the respondent.
- 3 Whether the respondent's grounds of opposition render the application incompetent or fatally defective.
Ratio Decidendi
The court found that the bill of costs was taxed by consent of the parties and a certificate of taxation was issued for Kshs. 1,850,000. The respondent did not challenge or set aside the consent or the certificate. The court held that it cannot rewrite the parties' agreement and that the certificate of taxation stands as a valid basis for judgment. The respondent's objections were found to lack merit. Accordingly, the court allowed the application, entered judgment for the applicant for the taxed sum, ordered interest at court rates until payment in full, and awarded the costs of the application to the applicant.
Court Disposition
Application allowed. Judgment entered for the applicant for Kshs. 1,850,000 plus interest and costs.
Orders
- Judgment is entered for the 3rd respondent/applicant against the petitioner/respondent for Kshs. 1,850,000.
- Interest shall accrue at court rates until payment in full.
Full Case Text
Judgment text and source record
32 paragraphs
IN THE HIGH COURT OF KENYA AT KISUMU
ELECTION PETITION NO. 2 OF 2017
IN THE MATTER OF ELECTION FOR COUNTY WOMEN MEMBER OF THE NATIONAL ASSEMBLY FOR KISUMU COUNTY
BETWEEN
GRACE ADHIAMBO AKUMU………...................……………....PETITIONER/RESPONDENT
VERSUS
THE INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION….1ST RESPONDENT
JOHN COX LORIONOKOU (Returning Officer Kisumu County)…......…2ND RESPONDENT
ROSA AKINYI BUYU………..…................…………………3RD RESPONDENT/APPLICANT
RULING
1. By a notice of motion dated 13. 8.18, brought under Section 11A, 1B and 3B of the Civil Procedure Act and Order 51 (1) of Civil Procedure Rules; the 3rd respondent/applicant prays for orders:-
1. THAT the certificate of costs issued on 25. 7.18 be executed as a decree of this Honourable Court and a decree be issued in terms of the said certificate
2. Any further order
3. The costs of this application
2. The motion is premised on the grounds on the body of the application and the supporting affidavit sworn on 13. 8.18 by Jackson Awele Onyango, advocate for the applicant. He avers that the Bill of Costs was on 11. 6.18 taxed by consent in the sum of Kshs. 1,850,000. 00and a certificate of taxation (Marked B) was issued for the said sum. He further avers that the certificate was served on the petitioner/respondent who has however failed to make good her payments obligations of the costs.
3. The application is opposed on the basis of Grounds of Opposition dated 11. 10. 18 and filed on 12. 10. 18. The respondent states that the application is frivolous, vexatious, lacks merit, is incompetent, fatally defective and offends principles of natural justice. The application is further stated to be brought in bad faith meant to stifle any negotiations between the parties.
4. I have considered the Notice of Motion in the light of the supporting affidavit and the grounds of opposition.
5. There is evidence that the 3rd respondent’s/applicant’s bill of costs dated 25th April, 2018 was taxed by consent of the parties on 11th June, 2018 for Kshs. 1,850,000/- and a certificate of taxation was issued for the said sum on 25th July, 2018.
6. It is trite that a court of law cannot rewrite a contract between the parties. The parties are bound by the terms of their contract. (See Eslon Plastics Of (K) Limited v National Water Conservation and Pipeline Corporation [2014] eKLR; GatobuM’IbuutuKaratho v Christopher Muriithi Kubai [2014] eKLRand National Bank of Kenya Ltd V Pipe Plastic Samkolit (K) Ltd & Another (2002) EA 503).
7. As it stands now, the consent that gave rise to the Certificate of Taxation in this matter has not been set aside or altered. In the circumstances, I see no reason to deny the 3rd respondent/applicant judgment as sought.
8. From the foregoing, I have come to the conclusion that the petitioner’s/respondent’s assertion that the 3rd respondent’s/applicant’s notice of motion is frivolous, vexatious, lacks merit, is incompetent, fatally defective and offends principles of natural justice is without merit.
9. The upshot of the foregoing is that the notice of motion dated 13. 8.18, succeeds and is allowed in the following terms:
a) Judgment is hereby entered for the 3rd respondent/applicant against the Petitioner/Respondent for Kshs. 1,850,000. 00
b) Interest shall accrue at court ratesuntil payment in full
c) The 3rd respondent/applicant is also awarded the costs of this application.
DATED, DELIVERED AND SIGNED AT KISUMU THIS 1STDAY OF NOVEMBER 2018
T.W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant - Felix
For Applicant/3rd Respondent - Mr Dehure/ Mr Awele
For Petitioner/Respondent - N/A