[2023] KEHC 27219 (KLR)

Kenya Orient Insurance Company Limited v JJ Chesaro & Co Advocates (Miscellaneous Application E231 of 2023) [2023] KEHC 27219 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27219 (KLR)

Republic of Kenya

In the High Court at Mombasa

Miscellaneous Application E231 of 2023

DKN Magare, J

December 14, 2023

Between

Kenya Orient Insurance Company Limited

Applicant

and

JJ Chesaro & Co Advocates

Respondent

Ruling

1. This is a Ruling on an Application dated 31st August 2023 seeking to set aside or vary the Ruling on Taxation dated 13th July 2023.

2. The Application is supported by the Affidavit of Amin Said Amin and is based on the material grounds that:a.The Taxing Officer erred in finding that the matter was time barred.b.The Taxing Officer erred in taxing the Bill of Costs without giving reasons.c.The Taxing Master took into account irrelevant factors in taxing bill of costs.

3. The Respondent filed Grounds of Opposition and a Replying Affidavit. The Application was opposed on the grounds inter alia that the Applicant had not established the reasons for seeking to set aside the award of costs.

4. It was similarly averred that the Applicant ought to deposit the security for the taxed amount.

Analysis 5. I have perused the impugned Application. I note that the Applicant was the Respondent in Mombasa High Court Misc Application No. E055 of 2023.

6. I note that the Bill of Costs arose from Advocate-Client Bill of Costs filed to this Court. The Taxing Master allowed the Bill of Costs on 13th July 2023 allowing the Bill of Costs at Kshs. 235,537/=.

7. In Donholm Rahisi Stores (firm) V EA Portland Cement Ltd [2005] eKLR Waweru J held:“Taxation of costs whether those costs be between party and party or between advocate and client is a special jurisdiction reserved to the taxing officer by the Advocates Remuneration Order. The court will not be drawn into the arena of taxation except by way of reference (from a decision on taxation) made under Rule 11 of the Advocates Remuneration Order.

8. Rule 11 of the Advocates Remuneration Order provides in extenso doth:11. Objection to decision on taxation and appeal to Court of Appeal(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.(3)Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.(4)The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) for the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.

9. The Applicant herein was aggrieved and preferred this Application. I understand that the Taxing Officer, upon delivering a decision on the Bill of Costs dated 28th February 2023 was functus officio. However, the Judge would not be functus officio. The Applicant herein or either party in the Taxation proceedings had the leeway to file a reference before the Judge if aggrieved. However, the Reference was to be filed within the same Taxation proceedings and not as a fresh Application.

10. The Applicant was required to file a Chamber Summons Application within Mombasa High Court Misc Application No. E055 of 2023. It was therefore untenable for the Applicant herein to lodge a fresh Application.

11. I note that the parties filed voluminous submissions and authorities in support and opposition to the Application. I have considered them but found no need to reproduce them here because the Application was wrongly filed and is nonstarter. As such this is a proper Application for striking out.

Determination 12. The upshot of the foregoing is that the Application dated 27th February 2023 is hereby struck out with no order as to costs.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 14TH DAY OF DECEMBER, 2023. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:Hamisi for the ApplicantNo appearance for the RespondentCourt Assistant - Brian