[2020] KEHC 7003 (KLR)
The court found that the applicant failed to comply with the mandatory procedure set out in Paragraph 11 of the Advocates (Remuneration) Order for challenging a taxing officer's decision. Specifically, the applicant did not give written notice of objection to the taxing officer or obtain the reasons for the decision...
Source-derived case information.
- Citation
- [2020] KEHC 7003 (KLR)
- Parties
- Appellant: Kenindia Assurance Co. Ltd; Respondent: Busways (K) Ltd
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 34 of 2015
- Procedural Posture
- Civil Appeal / Ruling on Chamber Summons Seeking to Set Aside Taxation and for Re Taxation of Bill of Costs
- Outcome
- application dismissed with costs
- Judges
- KW Kiarie
- Legal Topics
- Taxation of Costs, Procedure for Objecting Taxation, Advocates Remuneration Order, Reference to High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenindia Assurance Co. Ltd
Appellant
Busways (K) Ltd
Respondent
Procedural Posture
Civil Appeal / Ruling on Chamber Summons Seeking to Set Aside Taxation and for Re Taxation of Bill of Costs
Legal Issues
- 1 Whether the applicant followed the correct procedure for challenging the taxing officer's decision on the bill of costs.
- 2 Whether the application to set aside the ruling and order for re-taxation was properly before the court.
- 3 Whether the absence of reasons from the taxing officer invalidated the reference to the High Court.
Ratio Decidendi
The court found that the applicant failed to comply with the mandatory procedure set out in Paragraph 11 of the Advocates (Remuneration) Order for challenging a taxing officer's decision. Specifically, the applicant did not give written notice of objection to the taxing officer or obtain the reasons for the decision before filing the reference to the High Court. The absence of the taxing officer's reasons meant the court could not properly determine the matter. The court adopted the reasoning in Muriu Mungai & Co. Advocates v. New Kenya Co-Operative Creameries Ltd, holding that only the taxing officer can provide the necessary reasons, and the applicant's premature application was...
Court Disposition
application dismissed with costs
Orders
- The application is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUSIA
CIVIL APPEAL NO.34 OF 2015
BETWEEN
KENINDIA ASSURANCE CO. LTD..........................APPELLANT/APPLICANT
VERSUS
BUSWAYS (K) LTD............................................................................RESPONDENT
(Being an Appeal from the Ruling and order by P.Y Kulecho- Deputy Registrar).
RULING
1. The applicant moved the court by way of Chamber Summons dated 30th July 2019 and is seeking for the following orders:
a) That the Ruling delivered on 22. 05. 2019 by Hon. P.Y Kulecho, Deputy Registrar, and Busia High Court be set aside.
b) That the Honourable Court be pleased to re-tax or order to be remitted for re-taxation items 1,4,6,7,8,9, 10, VAT and Total Disbursements of the Respondent’s Bill of Costs dated 19. 02. 2019.
c) That the Honourable Court be pleased to grant such orders as it considers just and proper in the circumstances.
d) That costs of the application be provided for.
2. The application is premised on the following grounds:
a) That the taxing officer erred in principle in assessing the Bill of Costs dated 19. 02. 2019 at Kshs.1, 934477. 00.
b) That the Ruling is manifestly in error as the tabulation of the bill itself does not add up to the figure indicated while some of the figures do not have particulars of services rendered or disbursements paid for.
c) The Ruling is at considerable variance with the provisions of the Advocates Act, the Rules thereto and the Advocates Remuneration Order.
d) That the taxing officer erred in allowing the bill at an excessively high and exaggerated amount.
e) That the officer completely ignored the appellant/applicant’s submissions on the bill of costs dated 19. 02. 2019 hence arriving at a wrong conclusion.
f) That the Ruling does not indicate the principles or basis for the amounts allowed therein. .It is in the interest of justice that this application be brought before the Honourable court for just determination.
3. The application was opposed on grounds that the taxation was done in accordance of the applicable law.
4. When a party is not satisfied with taxing officer’s bill, there is a laid down procedure of challenging the results. Paragraph 11 of the said Advocates (Remuneration Order) provides:
(1) Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.
(2) The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection.
5. The applicant herein did not follow the laid down procedure and is therefore before this court irregularly.
6. In Muriu Mungai & Co. Advocates vs. New Kenya Co-Operative Creameries Ltd Nairobi (Milimani) HCMC No. 692 of 2007,Mwilu, J( as she was then) was of the view that:
It is mandatory for an applicant who objects to a taxation to annex the ruling, giving reasons by the taxing master supporting the taxation...Nowhere is it provided that if there be a delay in the taxing master giving reasons for taxation then a party may file a reference. Instead, rule 11 (4) gives the court power to enlarge time if the same lapses before a step needed to be done is done or taken...Under the rules the taxing officer is required forthwith, upon receipt of the notice of objection to give reasons for the decision and where they fail to do so, the thing to do is not to file a reference to the High Court...In the court’s view, the applicant moved the court too soon.
More reminders should have been sent to the taxing officer for reasons or any other legal action that would have resulted in the taxing officer giving reasons to be taken to have the reasons given. Nobody else can give those reasons but the taxing officer and it has not been shown that the taxing officer is not available. And more importantly the court cannot determine the matter in the absence of the taxing officer’s reasons for her decision in taxing the bill of costs as she did.
I hold the same view as the learned judge in the above cited case.
7. The application is therefore dismissed with costs.
DELIVERED and SIGNED at BUSIA this 8th Day of April, 2020
KIARIE WAWERU KIARIE
JUDGE