[2015] KEELC 199 (KLR)
The court held that the applicant was entitled to judgment on the certificate of taxation because the respondent did not challenge the taxation by way of reference, and the procedural issue of filing the bill of costs in a miscellaneous file rather than the main suit file did not render the taxation invalid. The...
Source-derived case information.
- Citation
- [2015] KEELC 199 (KLR)
- Parties
- Respondent: Malindi Holdings & Estate Agents Ltd; Applicant: Alma Holdings Limited; Respondent: Commissioner of Lands; Respondent: Mondo Limited; Respondent: Ali Omar Said Alamudi; Respondent: Malindi District Health Management Board; Respondent: Malindi District Hospital
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 48 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Judgment on Certificate of Taxation
- Outcome
- application allowed
- Judges
- OA Angote
- Legal Topics
- Taxation of Costs, Certificate of Taxation, Party and Party Costs, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Malindi Holdings & Estate Agents Ltd
Respondent
Alma Holdings Limited
Applicant
Commissioner of Lands
Respondent
Mondo Limited
Respondent
Ali Omar Said Alamudi
Respondent
Malindi District Health Management Board
Respondent
Malindi District Hospital
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Judgment on Certificate of Taxation
Legal Issues
- 1 Whether judgment should be entered in favour of the applicant based on the certificate of taxation issued.
- 2 Whether the filing of the bill of costs in a miscellaneous file rather than the main suit file invalidates the taxation process.
- 3 Whether the respondent is estopped from challenging the procedure at this stage having not filed a reference against the taxation.
Ratio Decidendi
The court held that the applicant was entitled to judgment on the certificate of taxation because the respondent did not challenge the taxation by way of reference, and the procedural issue of filing the bill of costs in a miscellaneous file rather than the main suit file did not render the taxation invalid. The court found that any objections to the procedure should have been raised before the taxing officer or by reference, and having failed to do so, the respondent was estopped from raising those issues at this stage. The court further noted that the certificate of taxation issued by the taxing officer was valid and enforceable, and the application for judgment was therefore allowed.
Court Disposition
application allowed
Orders
- Judgment is entered in favour of the applicant (Alma Holdings Ltd) against the respondent (Malindi Holdings & Estate Agents Ltd) in the sum of Kshs. 557,920 together with interest at court rates from 22/2/12 until payment in full.
- The respondent shall pay the applicant the costs of this application.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
MISC. APP. NO. 48 OF 2011
MALINDI HOLDINGS & ESTATE AGENTS LTD..........................APPLICANT
=VERSUS=
1. COMMISSIONER OF LANDS
2. MONDO LIMITED
3. ALI OMAR SAID ALAMUDI
4. ALMA HOLDINGS LIMITED
5. MALINDI DISTRICT HEALTH MANAGMENT BOAD
6. MALINDI DISTRICT HOSPITAL..............................................RESPONDENTS
(for service rendered in Malindi HCCC NO. 105 of 2001)
=BETWEEN=
ALMA HOLDINGS LIMITED...............................................................APPLICANT
=VERSUS=
MALINDI HOLIDINGS & ESTATE AGENTS LTD.......................RESPONDENT
R U L I N G
1. The Application before me is dated 22nd April 2015 and is filed pursuant to the provisions of Order 51 Rule 2 of the Advocates Act.
2. In the Application, the Applicant is seeking for the following orders:
(a) That Judgment be entered in favour of the Applicant (Alma Holdings Ltd) against the Plaintiff/Respondent (Malindi Holdings & Estate Agents Ltd) in terms of the Certificate of Taxation given on 22/2/12 in the sum of Kshs.557,920/= together with interest thereon at court rates from 22/2/12 until payment in full.
(b) That the Respondent do pay to the Applicant the costs of this Application.
3. The Application is premised on the grounds that the Respondent sued the Applicant with 5 others in Malindi HCCC No. 105 of 2001; that the Applicant applied for the suit to be struck out with costs; that a Ruling was delivered on 19th May 2008 striking out the suit and that the Applicant's Bill of Costs was taxed and a Certificate of Taxation was issued on 15th August 2012.
4. In his Replying Affidavit, the Respondent's counsel deponed that in the Ruling dated and delivered at Malindi on 19th May 2008 in HCCC No. 105 of 2001, no costs were awarded to any party; that there is no suit in Miscellaneous Civil Application No. 48 of 2011 and that this is a fictitious suit.
5. The parties advocate appeared before me on 18th June 2015 and made oral submissions. I have considered the said submissions.
6. A perusal of this file shows that the Applicant filed a Party and Party Bill of costs on 15th November 2011 pursuant to the Ruling of Ombija J dated 19th May 2008 in Malindi HCCC No. 105 of 2001.
7. The Bill of Costs was duly served on the Respondent's advocate and the same was taxed by the taxing officer on 22nd February 2012.
8. After the expiry of the period within which the Respondent could file a Reference to the High Court, the Court issued to the Applicant a Certificate of Taxation on 15th August 2012. The Applicant now wants this court to enter Judgment in respect to the Certificate of Costs.
9. The Respondent's advocate has agreed that the Ruling that gave rise to the Bill of Costs was delivered in HCCC No. 105 of 2001 and not in this particular file.
10. I agree with the contention that the Party and Party Bill of Costs should have been filed in the main file, that is HCCC No. 105 of 2001. However, I have not been told what is unlawful about a party opening a miscellaneous file with a view of filing the Party and Party Bill of Costs.
11. Of course, the taxing officer, while taxing the Bill of Costs where a Miscellaneous file has been opened would require the main file while assessing the costs. I have not been told that the taxing officer did not do that.
12. In any event, the issue of whether or not it was procedural to open a separate file for the purpose of filing the Bill of Costs should have been raised before the taxing officer or by way of a reference to this court. Having not done so, the Respondent is estopped from raising that issue at this stage.
13. Indeed, this position applies also to the argument that Ombija J did not allow costs when he struck out the suit in HCCC No. 105 of 2001.
14. Considering that there is no reference before me, I shall not delve into the issue of whether, in the absence of an order of costs, the taxing officer could have still taxed the Applicant's costs as she purported to do. That issue is water under the bridge.
15. Considering that the taxation of the Bill of Costs has never been challenged by the Respondent by way of a Reference, and in view of the Certificate of Costs that was issued in this matter by the taxing officer, I allow the Application dated 22nd April 2015.
Dated and delivered in Malindi this 9th day of October2015.
O. A. Angote
Judge