[2024] KEHC 2695 (KLR)
The court found that the adequacy and propriety of service of the advocate-client bill of costs and taxation notice were central to the dispute. Given the evidential nature of the issues and the fact that the process server was not cross-examined, the court held that the right to a fair hearing under the...
Source-derived case information.
- Citation
- [2024] KEHC 2695 (KLR)
- Parties
- Applicant: Machora Motuka & Company Advocates; Respondent: Agnes Mwemba Kisombe
- Court
- High Court
- Court Station
- High Court at Voi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E001 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Taxation and Stay Proceedings
- Outcome
- Application allowed; ex parte taxation and subsequent orders set aside; fresh taxation ordered; stay of proceedings and suspension of warrant of attachment granted; parties to bear own costs.
- Judges
- GMA Dulu
- Legal Topics
- Service of Process, Ex Parte Orders, Taxation of Costs, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Machora Motuka & Company Advocates
Applicant
Agnes Mwemba Kisombe
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Taxation and Stay Proceedings
Legal Issues
- 1 Whether service of the advocate-client bill of costs and taxation notice upon the respondent was proper and in accordance with the law.
- 2 Whether the ex parte taxation and subsequent orders should be set aside due to alleged improper service.
- 3 Whether the respondent is entitled to a stay of proceedings and suspension of the warrant of attachment pending fresh taxation.
Ratio Decidendi
The court found that the adequacy and propriety of service of the advocate-client bill of costs and taxation notice were central to the dispute. Given the evidential nature of the issues and the fact that the process server was not cross-examined, the court held that the right to a fair hearing under the Constitution required that the ex parte taxation and subsequent orders be set aside. The court emphasized that justice demands not only that it be done but also be seen to be done, and that the advocate would not ultimately lose the right to costs if a fresh taxation was conducted. Accordingly, the application was allowed, the ex parte taxation and related orders were set aside, and a...
Court Disposition
Application allowed; ex parte taxation and subsequent orders set aside; fresh taxation ordered; stay of proceedings and suspension of warrant of attachment granted; parties to bear own costs.
Orders
- Stay of further proceedings and all actions in the taxation relating to the warrant of attachment; suspension of the warrant of attachment of the property imposed on the applicant, subject to directions by the taxation officer after fresh taxation.
- Ex parte taxation and all subsequent orders in the suit set aside; applicant granted unconditional leave to defend the fresh taxation.
Full Case Text
Judgment text and source record
27 paragraphs
Machora Motuka & Company Advocates v Kisombe (Miscellaneous Application E001 of 2023) [2024] KEHC 2695 (KLR) (12 March 2024) (Ruling)
Neutral citation: [2024] KEHC 2695 (KLR)
Republic of Kenya
In the High Court at Voi
Miscellaneous Application E001 of 2023
GMA Dulu, J
March 12, 2024
Between
Machora Motuka & Company Advocates
Applicant
and
Agnes Mwemba Kisombe
Respondent
Ruling
1. Before me is a Notice of Motion dated 8th February 2023 filed by Agnes Mwemba Kisombe under Order 10 Rule 11, 22, 22(1) and (2) of the Civil Procedure Rules 2010 and Section 3A of the Civil Procedure Act (Cap.21), and seeks the following orders:-1. Spent).2. The court be pleased to grant orders of stay of the proceedings and all such other decrees in the matter herein and hence suspend the warrant of attachment of the property imposed on the respondent/applicant on the basis of the taxation.3. That the court be pleased to set aside the exparte taxation and all other orders in this suit.4. The court be pleased to grant such or further orders it deems fit to grant.5. That the costs of this application be in the cause.
2. The application has grounds on the face of the Notice of Motion that the taxation and subsequent attachment of property of the applicant was highly questionable and needs to be ventilated afresh. That the applicant cooperation in the lower court in Children Case No 11 of 2013 and attendances in court, should have raised eye brows whether any service upon the applicant regarding the advocates bill of costs was done; that the alleged service by the process server left a lot to be desired as it was claimed to have been done through mobile phone whatsapp; that the said mode of service was unprocedural; that the applicant is a lay woman; that it was only fair and just that the process server be summoned to explain why he claimed to have served the applicant while the person from Sure Auctioneers served the applicant’s daughter.
3. The application was filed with a supporting affidavit sworn on 8th February 2023 by Agnes Mwemba Kisome the applicant, which amplifies the grounds of the application.
4. The applicant also filed a further affidavit she swore on 17th March 2023.
5. The application is opposed through a replying affidavit sworn by Brian Machora Motuka advocate on 20th March 2023 in which it was deponed that the application is an afterthought meant to delay the fruits of the judgment; that the burden was on the applicant to prove her allegations, that it was interesting that while denying service of the advocate client bill of costs and the taxation notice the applicant says the process server served through whatsapp messenger application; that the process server filed a comprehensive affidavit of service; that the denial of service was done through general denials; that stay of proceedings should not be confused with stay of execution; that stay of proceedings would have been applicable if the applicant would have the intention of filing a reference; that the attachment and sale can only be suspended; that the prayers sought are utterly misplaced, and that the respondent be allowed to enjoy the fruits of the judgment.
6. The respondent Brian Machora Motuka also field a supplementary affidavit he swore on 23rd March 2023 denying that he had agreed to proceed from where Mr. Osoro of Osoro Omwoyo & Company Advocates had left.
7. Agnes Mwemba Kisombe filed yet a further replying affidavit she swore on 2nd May 2023 contesting the averments in the further affidavit sworn by Brian Machora Motuka on 23rd March 2023.
8. I note that the parties relied only on the affidavits filed, and none of them filed written submissions.
9. This is primarily a contest on the adequacy of service of process in the taxation of advocates client bill of costs herein, resulting in the subsequent proclamation for attachment and sale of the properties of the client Agnes Mwemba Kisombe.
10. I note that the issues raised in the affidavits filed herein are highly evidential in nature, and this court is not able to deal with the said evidential dimensions, as this is an application and not a suit. Secondly, the person who effected the service of the process (the process server), is neither a party herein nor has he been cross-examined.
11. This being an application challenging the process of service, and since the Constitution under Article 25 and 50 confers a right to fair hearing to all litigants which is not a limited, and since courts are enjoined to promote and protect that right to fair hearing, and since the advocate will not ultimately lose his right to costs if I grant the orders sought; I find that this is a matter wherein, the dictates of justice and fair play mean that, I allow the application herein for justice not just to be done, but also to be seen to be done.
12. I thus allow the application dated 8th February 2023 and order as follows:-1. I grant stay of further proceedings and all other actions in the taxation herein relating to the warrant of attachment and suspend the warrant of attachment of the property imposed on the applicant on the basis of the taxation herein, subject to what the taxation officer will direct after conducting fresh taxation.2. I set aside the exparte taxation herein and all other subsequent orders in this suit and grant the applicant Agnes Mwemba Kisombe herein unconditional leave to defend the fresh taxation.3. The taxing officer will conduct a fresh taxation without delay, and in that regard this matter will be mentioned before a competent taxing officer on 26th March 2024 for directions and fixing a date for taxation.4. Parties will bear their respective costs of the present application.
DATED, SIGNED AND DELIVERED THIS 12TH DAY OF MARCH 2024 AT VOI IN OPEN COURT.GEORGE DULUJUDGEIn the presence of:-Alfred/Trizah – Court AssistantsMr. Mwinzi for Agnes Kisombe