[2013] KEHC 3916 (KLR)
The court found that since the Respondent is now willing to prosecute the reference against the taxed costs, and in the interest of justice, the order of 7th March 2013 allowing execution for taxed costs should be set aside. The court emphasized that the Respondent must act expeditiously by fixing the reference for...
Source-derived case information.
- Citation
- [2013] KEHC 3916 (KLR)
- Parties
- Applicant: Majanja Luseno & Co. Advocates; Respondent: Lennah Wanjiku Koinange
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Case 29 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Order
- Outcome
- Application to set aside the order of 7th March 2013 is allowed on terms.
- Judges
- LK Kimaru
- Legal Topics
- Setting Aside Orders, Stay of Execution, Taxation of Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Majanja Luseno & Co. Advocates
Applicant
Lennah Wanjiku Koinange
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Order
Legal Issues
- 1 Whether the order of 7th March 2013 allowing execution for taxed costs should be set aside.
- 2 Whether the Respondent should be granted an opportunity to prosecute the reference against the taxed costs.
- 3 Whether the Respondent is entitled to stay of execution pending hearing of the reference.
Ratio Decidendi
The court found that since the Respondent is now willing to prosecute the reference against the taxed costs, and in the interest of justice, the order of 7th March 2013 allowing execution for taxed costs should be set aside. The court emphasized that the Respondent must act expeditiously by fixing the reference for hearing within seven days and ensuring the hearing occurs within two months. The court also imposed a condition that the Respondent pays the costs of the application, assessed at Kshs.5,000, within seven days, failing which the orders in favour of the Respondent would be vacated. The decision balances the need for finality in litigation with the right to be heard on the merits...
Court Disposition
Application to set aside the order of 7th March 2013 is allowed on terms.
Orders
- The order of 7th March 2013 is set aside.
- The Respondent shall fix the reference for hearing within seven (7) days of the date of this ruling.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
Miscellaneous Case 29 of 2012 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif]
MAJANJA LUSENO & CO. ADVOCATES…....…………………………………………APPLICANT
VERSUS
LENNAH WANJIKU KOINANGE…………..…………………………………………..RESPONDENT
RULING
On 7th March 2013, this court issued the following order:
“Since there is no stay of execution issued on this matter, the Respondent shall be at liberty to execute for the tax costs.”
The order was made after the Respondent failed to appear in court. The Respondent has now made an application seeking to have the said order set aside. The grounds in support of the application are stated on the face of the application. The application is supported by the annexed affidavit of Lily Munene, an advocate in the firm of Nyaberi & Co. Advocates. The said firm represents the Respondent in this matter. The application is opposed, the Applicant has filed grounds in opposition to the application.
During the hearing of the application, this court heard oral rival submissions made by Miss Munene for the Respondent and by Mr. Anzala for the Applicant. I have carefully considered the said submission. There is a pending reference before this court from the decision of the taxing officer in respect of the costs that were taxed in favour of the Applicant. Pending the hearing and determination of the reference, the Respondent filed an application for stay of execution of the said tax cost. That application is yet to be canvassed. Meanwhile, it appeared that the Respondent was using the fact that there is a pending application for stay, to frustrate the hearing of the reference. This court made the order that is the subject of this application on that basis. Since the Respondent is now willing to prosecute the reference, for the interest of justice, this court will set aside its order of 7th March 2013.
However, the Respondent is ordered to fix the reference for hearing within seven (7) days of today’s date. The hearing of the said reference shall be within the next two (2) months. The Respondent shall pay the costs of this application which the court assesses at Kshs.5,000/-. The said amount shall be paid within seven (7) days of today’s date or in default, the orders granted in favour of the Respondent shall stand automatically vacated. It is so ordered.
DATED AT NAIROBI THIS 18th DAY OF APRIL, 2013
L. KIMARU
JUDGE
[if gte mso 9]><![endif][if gte mso 9]><xml>
Normal 0
false false false
EN-US X-NONE X-NONE
</xml><![endif][if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; line-height:115%; font-size:11. 0pt;"Calibri","sans-serif"; mso-bidi-"Times New Roman";} </style> <![endif]