[2024] KEELC 7364 (KLR)
The court found that the defendants had indeed filed submissions opposing the bill of costs, as evidenced by the e-filing record. The taxing master misdirected himself by stating the bill was unopposed and proceeding to tax it without considering the defendants' input. This amounted to a denial of the defendants'...
Source-derived case information.
- Citation
- [2024] KEELC 7364 (KLR)
- Parties
- Plaintiff: Rukiya Abdulrahman Hatimy alias Rukiya Nurein Hatimy; Plaintiff: Zulfat Abdulrahman Hatimy Alias Zulfat Nurein Hatimy; Defendant: Mohideen Abdulrahman Mohamed Hatimy; Defendant: Ahmed Abdulrehman Hatimy
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 45 of 2014
- Procedural Posture
- Chamber Summons / Ruling on Application to Set Aside Taxing Master's Decision
- Outcome
- application allowed
- Judges
- SM Kibunja
- Legal Topics
- Taxation of Costs, Right to Be Heard, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rukiya Abdulrahman Hatimy alias Rukiya Nurein Hatimy
Plaintiff
Zulfat Abdulrahman Hatimy Alias Zulfat Nurein Hatimy
Plaintiff
Mohideen Abdulrahman Mohamed Hatimy
Defendant
Ahmed Abdulrehman Hatimy
Defendant
Procedural Posture
Chamber Summons / Ruling on Application to Set Aside Taxing Master's Decision
Legal Issues
- 1 Whether the taxing master erred in holding that the bill of costs was unopposed despite the defendants having filed submissions.
- 2 Whether failure to consider the defendants' submissions amounted to a denial of the right to be heard under Article 50(1) of the Constitution.
- 3 Whether the ruling on taxation should be set aside and the bill of costs remitted for re-taxation.
Ratio Decidendi
The court found that the defendants had indeed filed submissions opposing the bill of costs, as evidenced by the e-filing record. The taxing master misdirected himself by stating the bill was unopposed and proceeding to tax it without considering the defendants' input. This amounted to a denial of the defendants' right to be heard as guaranteed by Article 50(1) of the Constitution. To remedy this procedural injustice, the court set aside the taxing master's ruling and remitted the bill of costs for re-taxation, ensuring both parties have an opportunity to be heard. Each party was ordered to bear their own costs for the application, in line with the court's discretion under section 27 of...
Court Disposition
application allowed
Orders
- The taxing officer’s ruling of 13th March 2024 on the party and party bill of costs dated 21st June 2023 is set aside.
- The party and party bill of costs dated 21st June 2023 is remitted back to the taxing officer for re-taxation.
Full Case Text
Judgment text and source record
25 paragraphs
Hatimy alias Rukiya Nurein Hatimy & another v Hatimy & another (Environment & Land Case 45 of 2014) [2024] KEELC 7364 (KLR) (6 November 2024) (Ruling)
Neutral citation: [2024] KEELC 7364 (KLR)
Republic of Kenya
In the Environment and Land Court at Mombasa
Environment & Land Case 45 of 2014
SM Kibunja, J
November 6, 2024
Between
Rukiya Abdulrahman Hatimy alias Rukiya Nurein Hatimy
1st Plaintiff
ZulfatAbdulrahman Hatimy Alias Zulfat Nurein Hatimy
2nd Plaintiff
and
Mohideen Abdulrahman Mohamed Hatimy
1st Defendant
Ahmed Abdulrehman Hatimy
2nd Defendant
Ruling
1. The defendants filed the chamber summons dated the 27th April 2024 seeking for the taxing masters ruling of 13th March 2024 on party and party bill of costs to be set aside and the same be re-taxed. The application is based on the nine (9) grounds on its face and supported by the affidavit of Mohideen Abdulrahman Mohamed Hatimy sworn on the 27th April 2024, inter alia that the taxing master erred in holding the bill of costs was not opposed when the defendants had filed submissions in opposition thereto. That it follows that the defendants had a right under Article 50(1) of the Constitution to be heard, and the ruling should be set aside and the bill of costs be taxed re-taxed.
2. The application is opposed by the plaintiffs through the seven (7) grounds of opposition dated the 22nd May 2024, inter alia that application is misconceived, that the allegation that the defendants’ submissions were not considered is not a ground for setting aside the decision by the taxing master.
3. The learned counsel for the defendants and plaintiffs filed their submissions dated the 10th June 2024 and 14th June 2024 respectively, which the court has considered.
4. The court has carefully considered the grounds on the chamber summons, the affidavit evidence, grounds of opposition, submissions by the learned counsel, the record and come to the following determinations:a.That the party to party bill of costs subject matter of the taxing master’s ruling of 13th March 2024 is the one dated the 21st June 2023. In the said ruling, at paragraph 1, the learned taxing master’s inter alia observed that it was not opposed, and proceeded to tax it at Kshs.300,691. 67. The defendants have exhibited a copy of their submissions dated the 14th December 2023 on the plaintiff’s bill of costs dated 21st June 2023. Going by the notes on the right margin, the submissions were filed through the e-filing on the 14th December 2023 at 18:04:35. b.That in view of the above, it follows that the taxing master misdirected himself by holding that the bill of costs was unopposed and proceeding to tax it without giving due considerations to the defendants’ input through the said submissions. The defendants had a right to be heard in the bill of costs and having filed submissions, it was a misdirection on the part of the taxing master to hold that the bill of costs was unopposed.c.That so as to accord the defendants an opportunity to be heard in the bill of costs, it is only fair and just that the ruling of 13th March 2024 be set aside and the bill of costs dated the 21st June 2023 be remitted back to the taxing master for re-taxation.d.That under section 27 of the Civil Procedure Act chapter 21 of Laws of Kenya, costs follow the events unless where otherwise ordered for good reasons. In this matter, I find it just to order that each party bear their own costs.
5. Flowing from the above conclusions, the court finds and orders as follows:
a.That the taxing officer’s ruling of 13th March 2024 on the party and party bill of costs dated 21st June 2023, is hereby set aside.b.The Party and Party bill of costs filed by the plaintiffs dated the 21st June 2023 is hereby remitted back to the taxing officer for re-taxing.c.Each party to bear their own costs in this application.Orders accordingly.
DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 6TH DAY OF NOVEMBER 2024. S. M. KIBUNJA, J.ELC MOMBASA.In the presence of:Plaintiff : M/s JumaDefendant : Mr. Sydney for Gikandi.Leakey – Court Assistant.S. M. KIBUNJA, J.ELC MOMBASA.