[2010] KEHC 1865 (KLR)
The court found that the applicant's challenge to the taxation of costs was incompetent because the proper procedure under the Advocates (Remuneration) Order was not followed. No reference was filed, no reasons were sought from the taxing master, and the application was brought out of time. The fact that the...
Source-derived case information.
- Citation
- [2010] KEHC 1865 (KLR)
- Parties
- Applicant: Barnabas Tendenei; Respondent: Ledishah J.K. Kittony & Company Advocates
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Application 170 of 2005
- Procedural Posture
- Civil Application / Ruling on Chamber Summons to Set Aside Taxation Orders
- Outcome
- application dismissed
- Legal Topics
- Taxation of Costs, Setting Aside Orders, Review of Taxed Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Barnabas Tendenei
Applicant
Ledishah J.K. Kittony & Company Advocates
Respondent
Procedural Posture
Civil Application / Ruling on Chamber Summons to Set Aside Taxation Orders
Legal Issues
- 1 Whether the taxation of the bill of costs should be set aside or varied due to alleged procedural irregularities.
- 2 Whether the application challenging the taxed costs is competent in the absence of a reference or request for reasons from the taxing master.
- 3 Whether the application is time-barred under the Advocates (Remuneration) Order.
Ratio Decidendi
The court found that the applicant's challenge to the taxation of costs was incompetent because the proper procedure under the Advocates (Remuneration) Order was not followed. No reference was filed, no reasons were sought from the taxing master, and the application was brought out of time. The fact that the taxation was not listed on the cause list did not excuse the applicant's counsel from attending, especially since service of the taxation date had been effected. The court held that there was no sufficient reason to set aside or vary the taxation orders, and the application was dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application is dismissed for being without merit.
- The respondent will have the costs of the application.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
CIVIL APPLICATION 170 OF 2005
LEDISHAH J.K. KITTONY & COMPANY ADVOCATES ……………RESPONDENT
-VERSUS-
BARNABAS TENDENEI…………………………………........…………….. APPLICANT
RULING
Before me is a Chamber Summons application brought under order 1XB rule 8 of the Civil Procedure Rules and sections 3,3A and 63(e) of the Civil Procedure Act. It prays that the proceedings of the 29th April 2008 and all consequential orders be set aside and/or varied on the grounds that the Taxation of the Bill of Costs scheduled for the 29th April 2008 before the Deputy Registrar was not cause-listed on the said date and the exparte taxing was wrongful. That the taxed costs were very high and ought to be reviewed downwards and the application ought to be allowed in the interests of justice. The affidavit in support is sworn by the applicant.
In the Replying affidavit the application is said to be without merit and an abuse of the process of the court. That the date on which the bill was taxed was taken by the Respondent and served on the applicant and therefore whether or not the cause was listed for taxation was not material the applicant ought to have been before the taxing master. Submissions by both counsel appearing for their respective clients were in support of those respective averments in the application and affidavits. To the extent that this application challenges the amount taxed I find the application incompetent. It does not show the error on the taxation and the procedure followed is strange.
There is no reference filed, no reasons of the taxing master sought and the Ruling having been made on 6th May 2008 this application is brought way out of time. The Advocates (Remuneration) Order provisions in Rules 10 and 11 have not been adhered to.
The taxing master noted that there had been service of the taxation date. That the taxation was not listed on the day’s cause list may have misled the applicant’s Counsel not to attend could but should not have stopped him from checking to see if the Respondent who had served a taxation date would not attend court and proceed with the taxation as he did. The Advocate for the applicant did not act prudently. I find that there is not a reason given for me to grant the orders sought. I dismiss this application for being without merit. The Respondent will have the costs.
Orders accordingly.
DATED SIGNED AND DELIVERED AT ELDORET THIS 21ST DAY OF JULY, 2010.
P.M. MWILU.
JUDGE.
In the presence of
Kipseii Advocate for Applicant
Shibanda Advocate for Respondent
P.M. MWILU
JUDGE.