[2004] KEHC 2181 (KLR)
The court found that the Taxing Officer's action in taxing the Bill of Costs based on Schedule VI of the Advocates Remuneration Order, resulting in an instruction fee of KES 55,000, was contrary to the express terms of the decree, which limited costs to the lower court scale. The court held that the arguments...
Source-derived case information.
- Citation
- [2004] KEHC 2181 (KLR)
- Parties
- Plaintiff: Kamau Rugu; Defendant: John Chege Kubai
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1571 of 1995
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Taxation and Stay Execution
- Outcome
- application allowed
- Legal Topics
- Taxation of Costs, Stay of Execution, Jurisdiction of Court, Advocates Remuneration Order
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kamau Rugu
Plaintiff
John Chege Kubai
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Taxation and Stay Execution
Legal Issues
- 1 Whether the Deputy Registrar's order on taxation of costs should be set aside.
- 2 Whether execution of the decree should be stayed.
- 3 Whether the Taxing Officer's action was in conformity with the decree regarding costs.
Ratio Decidendi
The court found that the Taxing Officer's action in taxing the Bill of Costs based on Schedule VI of the Advocates Remuneration Order, resulting in an instruction fee of KES 55,000, was contrary to the express terms of the decree, which limited costs to the lower court scale. The court held that the arguments advanced by the respondent could not cure this fundamental error. The court exercised its inherent jurisdiction under Section 3A of the Civil Procedure Act to set aside the Deputy Registrar's order and stay execution of the decree, as the taxation was not in conformity with the decree. The application was allowed as prayed, and costs were awarded to the applicant.
Court Disposition
application allowed
Orders
- The Deputy Registrar’s order of 9th December 2003 made during the taxation of a party and party Bill of Costs is set aside.
- Execution of the decree issued on 8th July 2002 is stayed.
Full Case Text
Judgment text and source record
18 paragraphs
IN THE HIGH COURT AT NAIROBI CIVIL CASE NO.1571 OF 1995
KAMAU RUGU ………………………………………… PLAINTIFF VERSUS JOHN CHEGE KUBAI ……………………………… DEFENDANT
RULING
This application has been brought under Order IXB Rule 8, Order XXI Rule 22 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and all other enabling provisions of the law. In it the applicant seeks orders as follows:
1. That the Deputy Registrar’s order of 9th December 2003 made during the taxation of a party and party Bill of Costs herein be set aside
2. That the execution of a decree issued on 8th July 2002 be stayed.
3. That costs of the application be provided for.
The Respondents have challenged the jurisdiction of this court to hear this application in view of the provisions of Rule 11 of the Advocates remuneration Order which provides for the procedure to be followed where a party wishes to object to a decision by the taxing officer. I share the Respondents concern as to whether the provisions of Order IXB have been properly invoked herein but will disregard the same in view of the fact that Section 3A of the Civil Procedure Act and ALL other enabling provisions of the law have additionally been invoked. I believe that the reason for invoking Order and XXI rule 22 is that the Applicant seeks to stay execution which he could not do under Rule 11 of the Remuneration Order. Be that as it may, I take the view that what this court is being called upon to do is to scrutinize the decree issued herein and to find whether or not the Taxing Officer’s action in taxing the Bill herein was in conformity with the same.
It is quite clear from the decree annexed to the application as annexture ‘A’ provided that
“ (b) … the Defendant do pay the Plaintiff the costs of this suit at lower Court scale.”
The instruction fee as per item 1 of the bill taxed herein being Shs.55,000/= is clearly based on schedule VI of the Advocates Remuneration Order and plainly contradicts the decree of this court. I see no validity in the arguments in support of the Respondent’s objection as the same are incapable of curing this glaring error.
In the premises I allow this application and grant the orders sought as prayed in the Chamber Summons dated 5th April 2004. Costs to the Applicant in any event.
Dated and Delivered at Nairobi this 24th day of September 2004.
M.G. Mugo
Ag. Judge
In the presence of:
S. Musalia Mwenesi & Company Advocate for the Plaintiff -Lavuna
Kiania Njau & Company Advocates for the Defendant - K. Njau