[2011] KEHC 1708 (KLR)
The court found that the applicant was not served with the bill of costs or notified of the taxation proceedings, which explained his failure to object within the prescribed time. The respondents did not deny the applicant's allegations regarding non-service. The court exercised its discretion under paragraph 11(4)...
Source-derived case information.
- Citation
- [2011] KEHC 1708 (KLR)
- Parties
- Applicant: Jackson Kiraithe; Respondent: Thomas Kinoti John; Respondent: Alex Miriti Manyara; Respondent: John Kiriatu Kiunga; Respondent: Julius Nkunja Magambo; Respondent: Njuguna Kimani
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 1 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Object to Taxation
- Outcome
- application allowed
- Judges
- JK Sergon
- Legal Topics
- Taxation of Costs, Leave to Object, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackson Kiraithe
Applicant
Thomas Kinoti John
Respondent
Alex Miriti Manyara
Respondent
John Kiriatu Kiunga
Respondent
Julius Nkunja Magambo
Respondent
Njuguna Kimani
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Object to Taxation
Legal Issues
- 1 Whether the applicant should be granted leave to object to the taxing officer's decision out of time.
- 2 Whether failure to serve the applicant with the bill of costs justified the delay in filing the objection.
Ratio Decidendi
The court found that the applicant was not served with the bill of costs or notified of the taxation proceedings, which explained his failure to object within the prescribed time. The respondents did not deny the applicant's allegations regarding non-service. The court exercised its discretion under paragraph 11(4) of the Advocates Remuneration Order to grant the applicant leave to object out of time, holding that the delay, though long, was justified by the lack of service. The court therefore allowed the application and granted the applicant ten days to lodge his objection to the taxing officer's decision.
Court Disposition
application allowed
Orders
- The applicant is granted leave of ten (10) days to object and lodge objection notice to the decision of the taxing officer made on 7th May 2010.
- Cost of the application to abide the outcome of the objection to the taxation proceedings.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
MISC. APPLICATION NO. 1 OF 2011
JACKSON KIRAITHE.................................................……….…………….APPLICANT
VERSUS
THOMAS KINOTI JOHN.................................................................1ST RESPONDENT
ALEX MIRITI MANYARA................................................................2ND RESPONDENT
JOHN KIRIATU KIUNGA................................................................ 3RD RESPONDENT
JULIUS NKUNJA MAGAMBO........................................................4TH RESPONDENT
NJUGUNA KIMANI......................................................................... 5TH RESPONDENT
RULING
Pursuant to the provisions of paragraph 11 (2) and (4) of the Advocates Remuneration Order, Jackson Kiraithe, the Applicant herein, applied for leave to lodge an objection to the decision of the taxing officer made on 7th May 2010 vide the Summons dated 17th January 2011. The Summons was served upon Thomas Kinoti, Alex Miriti Manyara, John Kiriatu Kiunga, Julius Nkunja Magambo and Njuguna Kimani being the 1st-5th Respondents herein. The 1st Respondent was the only party who filed grounds of opposition to oppose the Summons.
The Applicant has averred that he was never served with the Respondents’ bill of costs dated 30th April 2010 and that is why the same was taxedexparte and in his absence. He alleged that the bill was exaggerated beyond the figures stated by the Advocates Remuneration order. In the grounds of opposition, the 1st Respondent urged this Court to reject the application on the ground that the Applicant filed the application after an inordinate delay. Under paragraph 11 (4) of the Advocates Remuneration Act, this court is given unfettered discretion to enlarge time to object to decision of the Taxing officer. The Applicant has stated that he was not served with the Bill of costs nor notified of the taxation hence his failure to lodge an objection within the time prescribed under paragraph 11 (1) and (2). The Respondents do not deny those allegations and averments. The 1st Respondent’s main contention is that the application was filed after an inordinate delay. In my mind, I think the delay may be long but it was because the Applicant was not served.
I am convinced I should exercise my discretion in favour of the Applicant. I hereby grant the Applicant leave of ten (10) days to object and lodge objection notice to the decision of the taxing officer made on 7th May 2010. Cost of the application to abide the outcome of the objection to the taxation proceedings.
Dated and delivered at Nyeri this 29th day of July 2011.
J. K. SERGON
JUDGE