[2018] KEHC 10263 (KLR)
The court found that, despite the serious allegations of corruption raised by the advocate, the overriding interest of justice required that the client, Mumias Sugar Company Limited, be given an opportunity to challenge the taxation by filing a reference out of time. The court exercised its discretion to allow the...
Source-derived case information.
- Citation
- [2018] KEHC 10263 (KLR)
- Parties
- Applicant: Kimeto & Associates Advocates; Respondent: Mumias Sugar Company Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 478 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Opposed Applications: Judgment for Taxed Costs Vs. Leave to File Reference Out of Time
- Outcome
- Leave granted to the respondent to file a reference out of time; costs of the chamber summons awarded to the advocate.
- Judges
- MM Kasango
- Legal Topics
- Taxation of Costs, Leave to File Reference Out of Time, Advocate Client Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kimeto & Associates Advocates
Applicant
Mumias Sugar Company Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Opposed Applications: Judgment for Taxed Costs Vs. Leave to File Reference Out of Time
Legal Issues
- 1 Whether the client should be granted leave to file a reference against taxation out of time.
- 2 Whether judgment should be entered for the advocate for the taxed costs.
Ratio Decidendi
The court found that, despite the serious allegations of corruption raised by the advocate, the overriding interest of justice required that the client, Mumias Sugar Company Limited, be given an opportunity to challenge the taxation by filing a reference out of time. The court exercised its discretion to allow the client to file the reference, noting that the failure to act was not shown to be deliberate and that the allegations of corruption, while serious, had not been responded to and could not be determinative at this stage. The court strictly limited the time for hearing the reference to one month and awarded the costs of the chamber summons to the advocate.
Court Disposition
Leave granted to the respondent to file a reference out of time; costs of the chamber summons awarded to the advocate.
Orders
- Mumias Sugar Company Limited shall within 7 days from the date hereof file a reference to the taxation of 5th December, 2017.
- At the reading of this ruling a date for hearing of that reference shall be fixed.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
COMMERCIAL & ADMIRALTY DIVISION
MISC. APPLICATION NO. 478 OF 2017
KIMETO & ASSOCIATES ADVOCATES...................ADVOCATE/APPLICANT
-VERSUS-
MUMIAS SUGAR COMPANY LIMITED.....................CLIENT/RESPONDENT
RULING
1. When this matter came before me on 10th July 2018, I directed that the two pending applications in this matter be heard together.
2. One of those applications is dated 24th April 2018 filed by the Advocate with the bill of costs. By that application the advocate seeks judgment be entered in her favour for the taxed costs.
3. The other application is filed by the client and is dated 31st May 2018. By that application the client seeks leave of this court to file a reference out of time against taxation.
4. It will be seen the two applications are diametrically opposed. One seeks judgment of taxed costs and the other seeks leave to file a reference against that taxation.
5. It will be seen that it was in error that I ordered the applications to be heard together. They cannot and I therefore set aside my said directions and order that it is the application dated 31st May 2018 that shall be considered first.
6. That application is supported by an affidavit of the Company Secretary of Mumias Sugar Company Limited. The deponent stated that a letter was received on 12th April 2018, by Mumias from Kimeto & Associates, the advocates. By that letter the advocate demanded payment of Ksh 60,000,000 from Mumias being taxed amount in this matter. That at first the deponent thought that the certificate of costs related to a matter Mumias was represented by an advocate only later to realize it was another matter, that is this matter. The deponent stated that Mumias had inadvertently failed to instruct counsel to represent Mumias in this matter.
7. The application is opposed. The advocate in opposition has made very damning allegation of corruption of Mumias. The advocate has alluded to attempts by officials of Mumias seeking to have the advocate to bribe those officials in return the taxed costs to be paid. The advocate attributes the application seeking to file a reference to the advocate’s refusal to corrupt those official. Those allegations have not been responded to.
8. That as it may, although it should not be seen as though this court is trivializing the allegation, I find the interest of justice will best be served by permitting Mumias an opportunity to file a reference. The court will however strictly limit the hearing of that reference to be concluded within one month.
9. The orders of the court are as follows:
(a) Mumias Sugar Company Limited shall within 7 days from this date hereof file a reference to the taxation of5th December, 2017.
(b) At the reading of this ruling a date for hearing of that reference shall be fixed.
(c) The costs of the chamber summon dated31st May 2018 areawarded to the Advocatein any case.
DATED, SIGNED and DELIVERED at NAIROBI this29thday of November,2018.
MARY KASANGO
JUDGE
Ruling read and delivered in open court in the presence of:
Court Assistant....................Sophie
........................................... for the Applicant
........................................... for the Respondent
MARY KASANGO
JUDGE