[2012] KEHC 4741 (KLR)
The court held that the taxation of the auctioneer's costs and the subsequent certificate of costs were premature because there was a pending application to set aside the ex-parte judgment, in which a stay of execution had already been granted. Until the application to set aside the judgment was heard and...
Source-derived case information.
- Citation
- [2012] KEHC 4741 (KLR)
- Parties
- Applicant: Jane Sifuna Juma; Respondent: The Chairman, Kimilili Land Disputes Tribunal; Interested Party: Dismas Zacharia Harun; Interested Party: Haji Abdul Wekesa Maungo; Auctioneer: Emmanuel Otiangala t/a Kuronya Auctioneers
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 76 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Review, Vary or Set Aside Taxation Orders
- Outcome
- application allowed
- Judges
- AO Muchelule
- Legal Topics
- Review of Taxation, Stay of Execution, Setting Aside Judgment, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Sifuna Juma
Applicant
The Chairman, Kimilili Land Disputes Tribunal
Respondent
Dismas Zacharia Harun
Interested Party
Haji Abdul Wekesa Maungo
Interested Party
Emmanuel Otiangala t/a Kuronya Auctioneers
Auctioneer
Procedural Posture
Miscellaneous Application / Ruling on Application to Review, Vary or Set Aside Taxation Orders
Legal Issues
- 1 Whether the Deputy Registrar's taxation of the auctioneer's costs was premature given the pending application to set aside the ex-parte judgment.
- 2 Whether the auctioneer was entitled to recover costs before determination of which party is liable for costs.
- 3 Whether the orders of taxation and certificate of costs should be set aside.
Ratio Decidendi
The court held that the taxation of the auctioneer's costs and the subsequent certificate of costs were premature because there was a pending application to set aside the ex-parte judgment, in which a stay of execution had already been granted. Until the application to set aside the judgment was heard and determined, and the court made a direction as to which party would be liable for costs, it was improper for the auctioneer to seek to recover his charges. The court found that the auctioneer's actions amounted to a side-show and that the proper course was to await the outcome of the pending application. Accordingly, the orders of the Deputy Registrar taxing the costs and the...
Court Disposition
application allowed
Orders
- The order of the Deputy Registrar taxing the auctioneer's costs and the consequential certificate of costs are recalled and set aside.
- The auctioneer is to pay the costs of this application.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL MISCELLANEOUS APPLICATION 76 OF 2006
JANE SIFUNA JUMA........................................................................APPLICANT
~VRS~
THE CHAIRMANKIMILILILANDDISPUTES TRIBUNAL..........RESPONDENT
AND
DISMAS ZACHARIA HARUN
HAJI ABDUL WEKESA MAUNGO...............................INTERESTED PARTIES
AND
EMMANUEL OTIANGALA t/a KURONYA AUCTIONEERS......AUCTIONEER
RULING
On 29/9/2010 judgment was delivered by Justice D. A. Onyancha wherein the award by Kimilili Land Disputes Tribunal and the order of the Resident Magistrate’s Court Kimilili adopting the award were removed into this court by order of Certiorariand quashed. The ex-parteApplicant was ordered to be paid costs by the Respondent and the Interested Parties. On 4/3/2011 the Interested Parties filed a motion to have the judgment and all consequential orders to be set aside to enable the matter to be heard afresh. In the meantime, it was sought that there be temporary stay of execution to await the hearing and determination of the application. The property of the Interested Parties had been attached and was slated for sale. On the same day an order of stay of sale was granted. On 11/7/2011 the court directed that the application be disposed of by way of written submissions and mention be on 8/11/2011. The application has not been heard and determined.
In the meantime, the auctioneer (Manuel Otiangala t/a Kuronya Auctioneers) filed a bill of costs which was taxed at Ksh.116,601/=. The auctioneer sought to attach and sell the Interested Parties’ goods to recover his charges. This is what led to the present application which seeks the review, variation or setting aside of the Deputy Registrar’s orders made on 13/10/2011 on the basis that it was premature given that there was on record the application to set aside the judgment in which application stay had been granted.
I agree that until the application to set aside the ex-parte judgment is heard and the court makes direction as to which party will pay costs what the auctioneer is seeking is a side-show, as it were. His bid to tax his costs/charges was premature.
Consequently, the order of the Deputy Registrar taxing those costs and the consequential certificate of costs are recalled and set aside. The auctioneer is asked to pay costs of this application.
Ruling delivered in open court this 15th day of March, 2012.
A.O. MUCHELULE
JUDGE