[2018] KEHC 2692 (KLR)
The court found that the Taxing Master erred in principle by treating the subject matter of the bill of costs as Kshs. 2,000,000/-, which was the value in the main suit, rather than the actual subject matter of the application, which was the transfer of the suit from Winam to Nairobi. The court reasoned that using...
Source-derived case information.
- Citation
- [2018] KEHC 2692 (KLR)
- Parties
- Applicant: Harry Bob Mosi t/a Mosi & Co. Advocates; Respondent: Samuel M. Onyango t/a S.M. Onyango & Associates Advocates
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Cause 182 of 2017
- Procedural Posture
- Miscellaneous Application / Reference From Taxing Officer's Decision
- Outcome
- application allowed
- Judges
- TW Cherere
- Legal Topics
- Taxation of Costs, Reference From Taxing Officer, Bill of Costs, Subject Matter Valuation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Harry Bob Mosi t/a Mosi & Co. Advocates
Applicant
Samuel M. Onyango t/a S.M. Onyango & Associates Advocates
Respondent
Procedural Posture
Miscellaneous Application / Reference From Taxing Officer's Decision
Legal Issues
- 1 Whether the Taxing Master erred in determining the subject matter of the respondent's bill of costs as Kshs. 2,000,000/-.
- 2 Whether the applicant is entitled to have the bill of costs taxed afresh based on the correct subject matter.
Ratio Decidendi
The court found that the Taxing Master erred in principle by treating the subject matter of the bill of costs as Kshs. 2,000,000/-, which was the value in the main suit, rather than the actual subject matter of the application, which was the transfer of the suit from Winam to Nairobi. The court reasoned that using the higher value would expose the applicant to double taxation if he were to lose the main suit, resulting in improper enrichment of the respondent. Accordingly, the court set aside the Taxing Master's ruling and directed that the bill of costs be taxed afresh based on the correct subject matter.
Court Disposition
application allowed
Orders
- The Ruling of the Taxing Master delivered by Hon. P.W. Mbulikah, Deputy Registrar on 27th June, 2018 is set aside.
- The Applicant’s Bill of Costs dated 10th April, 2017 shall be taxed afresh.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
(CORAM; CHERERE-J)
MISC. CIVIL CAUSE NO 182 OF 2017
HARRY BOB MOSI T/A Mosi & Co. Advocates.............................................APPLICANT
VERSUS
SAMUEL M. ONYANGO t/a S.M.Onyango & Associates Advocates........RESPONDENT
RULING
1. This is a reference from a decision of the Taxing Officer on the respondent’s bill of costs dated 10th April, 2017. The Bill of Costs was taxed on 27th June, 2018 for Kshs. 124,615/- and a certificate in respect thereof was issued on 4th July, 2018.
2. The Applicant’s Chamber Summons application dated 20th July, 2018 and filed on even date is brought under the provisions of Rule 11(2) of the Advocates (Remuneration) Order.It seeks the following orders:-
1. That this Honourable Court be pleased to set aside the Ruling of the Taxing Master delivered by Hon. P.W.Mbulikah, Deputy Registrar on 27th June, 2018
2. That this Honourable Court directs that the Applicant’s Bill of Costs be taxed afresh
2. The motion is premised on the grounds among others that the subject matter of the respondent’s bill of costs was not Kshs. 2,000,000/- but transfer of the suit to Nairobi
3. The motion is also supported by an affidavit sworn by the applicant on 20th July, 2018 in which he reiterates the grounds on the face of the application
4. The reference is opposed on the basis of a replying affidavit sworn by the respondentwho avers that the Taxing Master acted rightfully in finding that the subject matter of the suit application was the same subject matter of the suit which is pleaded to be Kshs. 2,000,000/-.
Analysis and Determination
5. I have carefully considered the reference in the light of the affidavitsand the submissions on record.
6. There is no dispute that the subject matter in Winam Civil Case No. 33 of 2016 which gave rise to this application is Kshs. 2,000,000/- . That is not however the same value of the subject matter in the application dated 25h August 2017 which sought an order of transfer of Winam Civil Case No. 33 of 2016 from Winam to Nairobi. To hold otherwise will subject the applicant to double taxation in the event that he looses that case and the respondent will have been improperly enriched.
Decision
7. I am convinced that the Taxing Master erred in principle.It is therefore hereby ordered that
1. The Ruling of the Taxing Master delivered by Hon. P.W.Mbulikah, Deputy Registrar on 27th June, 2018 be and is hereby set aside
2. This Honourable Court directs that the Applicant’s Bill of Costsdated10th April, 2017 be taxed afresh
DATED AND DELIVERED ON THIS30thDAY OFOctober2018
T.W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant - Felix
Applicant - Ms Ayieta
Respondent - N/A