[2024] KEHC 12417 (KLR)
The court found that the applicant failed to provide any evidence, such as the affidavit of service, to substantiate its claim of non-service or improper service in the taxation proceedings. The applicant did not challenge the service before the Deputy Registrar, who was the appropriate forum for such a challenge....
Source-derived case information.
- Citation
- [2024] KEHC 12417 (KLR)
- Parties
- Applicant: Homa Bay County Government; Respondent: Samuel Owino Nyauke t/a Aluoch Odera & Nyauke Advocates
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E050 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Taxation and Stay Execution
- Outcome
- application dismissed with costs
- Judges
- KW Kiarie
- Legal Topics
- Taxation of Costs, Setting Aside Orders, Service of Process, Right to Fair Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Homa Bay County Government
Applicant
Samuel Owino Nyauke t/a Aluoch Odera & Nyauke Advocates
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Taxation and Stay Execution
Legal Issues
- 1 Whether the applicant was denied a fair hearing in the taxation proceedings due to lack of service or participation.
- 2 Whether the taxation proceedings and resultant orders should be set aside for procedural irregularities.
- 3 Whether the application to stay execution and set aside taxation has merit.
Ratio Decidendi
The court found that the applicant failed to provide any evidence, such as the affidavit of service, to substantiate its claim of non-service or improper service in the taxation proceedings. The applicant did not challenge the service before the Deputy Registrar, who was the appropriate forum for such a challenge. The court held that the applicant's counsel demonstrated a lack of seriousness in prosecuting the application, including failure to file submissions and comply with court directions. Consequently, the application to set aside the taxation proceedings and stay execution lacked merit and was dismissed with costs. The orders were extended to related miscellaneous applications as...
Court Disposition
application dismissed with costs
Orders
- The application dated 23rd November 2023 is dismissed with costs.
- The orders issued herein apply to Homa Bay Miscellaneous Applications E053 of 2023, E056 and E057 of 2023.
Full Case Text
Judgment text and source record
26 paragraphs
Homa Bay County Government v Samuel Owino Nyauke t/a Aluoch Odera & Nyauke Advocates (Miscellaneous Application E050 of 2023) [2024] KEHC 12417 (KLR) (15 October 2024) (Ruling)
Neutral citation: [2024] KEHC 12417 (KLR)
Republic of Kenya
In the High Court at Homa Bay
Miscellaneous Application E050 of 2023
KW Kiarie, J
October 15, 2024
Between
Homa Bay County Government
Applicant
and
Samuel Owino Nyauke t/a Aluoch Odera & Nyauke Advocates
Respondent
Ruling
1. The applicant moved the court through a Notice of motion dated 23rd November 2023. The applicant is seeking the following orders:a.That this application be certified urgent and the same be heard ex-parte in the first instance.b.That this honorable court be pleased to stay the execution of the ruling issued by the Registrar on 20th November 2023, pending hearing and determination of this application inter-parties.c.That this honorable court be pleased to stay the execution of the ruling issued by the Registrar on 20th November 2023, pending hearing and determination of this application.d.This honorable court be pleased to set aside the taxation proceedings and orders of 20th November 2023, together with any incidental and subsequent proceedings and orders thereafter.e.That the advocate and client bill of costs herein dated 9th September 2022 be heard and determined on merit by involving the participation of the relevant parties to the bill of costs.f.The costs of this application be provided for.g.That the orders issued herein apply to Homa Bay Miscellaneous Applications E053 of 2023, E056 and E057 of 2023.
2. The application was premised on the following grounds:a.The client/applicant was excluded from the proceedings and the procedure used to arrive at the Taxation.b.That Client/Applicant was never granted an opportunity to interrogate the Bill of Costs filed by the applicant.c.The outcome reached by the taxing officer was detrimental and prejudicial to the client/applicant’s rights as it failed to consider the respondent’s right to a fair hearing.d.The application for taxation by the advocate/respondent offended the provisions of Section 45 of the Advocates Act and hence were nullity ab initio.e.The ruling issued by the Taxing Officer is the product of an unfair process.f.The respondent herein has been condemned unheard as not having been given an opportunity to participate in the taxation proceedings competently.
3. The respondent opposed the application on the following grounds:a.That the application is bad in law.b.The application lacks merit and abuses the court process.c.The application is a non-starter, frivolous and vexatious.
4. On the 8th day of May 2024, the parties herein agreed to canvass the application dated the 23rd day of November 2023 by way of written submissions. Mr. Rigga, holding brief for Mr. Akello, sought twenty-one days to file the same. When the matter came up for mention on the 19th day of June 2024, Mr. Rigga sought to have fourteen days to comply. The prayer was granted, but the applicant was ordered to pay the court adjournment fees.
5. The parties appeared in court on 18th September 2024, but no submissions had been filed at the time, and when Mr. Akello was given until 11 a.m. to pay the court adjournment fees earlier ordered, he did not return to court.
6. The chronology of events in this application demonstrates the lack of seriousness on the part of the applicant’s counsel.
7. When this matter went before the DR for taxation on November 9, 2023, the respondent informed the DR that the application dated September 5, 2022, had been served and an affidavit of service had been filed. It would appear the honourable DR was satisfied with the service. She proceeded to deliver the impugned ruling.
8. If the applicant wanted to challenge the ruling based on failure to attend the taxation due to nonservice, the correct forum should have been before the DR. The DR would have interrogated the affidavit of service and ruled whether the service was proper.
9. If the applicant wanted this court to consider the issue of non-service seriously, a copy of the affidavit of service should have been attached and demonstrate how the service was improper. This was not done.
10. I, therefore, find that the application lacks merit. It is dismissed with costs.
11. The orders issued herein should apply to Homa Bay Miscellaneous Applications E053 of 2023, E056 and E057 of 2023.
DELIVERED AND SIGNED AT HOMA BAY THIS 15TH DAY OF OCTOBER 2024KIARIE WAWERU KIARIEJUDGE