[2024] KEHC 14101 (KLR)
The court found that the application was spent because the prayers sought were all pending inter partes hearing and determination, which had already been overtaken by events. The court emphasized that it cannot issue orders in a vacuum where the application is no longer live. The applicant's arguments regarding...
Source-derived case information.
- Citation
- [2024] KEHC 14101 (KLR)
- Parties
- Applicant: Vincent Mogaka t/a Mogaka Bwongki & Co Advocates; Respondent: Yunus B Maimoon t/a Maimoon Medical Center
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E067 of 2022
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Judgment and for Set Off of Costs
- Outcome
- application dismissed with costs
- Judges
- SM Githinji
- Legal Topics
- Setting Aside Judgment, Taxation of Costs, Set Off of Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vincent Mogaka t/a Mogaka Bwongki & Co Advocates
Applicant
Yunus B Maimoon t/a Maimoon Medical Center
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Judgment and for Set Off of Costs
Legal Issues
- 1 Whether the court should set aside its judgment dated 4/6/2024.
- 2 Whether the court should direct a set-off of costs awarded to the respondent with amounts already paid by the applicant.
- 3 Whether the application is spent and capable of being granted.
Ratio Decidendi
The court found that the application was spent because the prayers sought were all pending inter partes hearing and determination, which had already been overtaken by events. The court emphasized that it cannot issue orders in a vacuum where the application is no longer live. The applicant's arguments regarding set-off and prior payments should have been raised at the taxation stage, not after judgment had been entered and adopted. Consequently, the application to set aside the judgment and for set-off was dismissed with costs to the respondent. The court also declined the applicant's oral request for stay pending appeal, noting non-compliance with stay conditions in a related matter.
Court Disposition
application dismissed with costs
Orders
- The application dated 24/6/2024 is dismissed with costs.
- Request for stay pending appeal is declined.
Full Case Text
Judgment text and source record
21 paragraphs
Mogaka t/a Mogaka Bwongki & Co Advocates v Maimoon t/a Maimoon Medical Center (Miscellaneous Application E067 of 2022) [2024] KEHC 14101 (KLR) (11 November 2024) (Ruling)
Neutral citation: [2024] KEHC 14101 (KLR)
Republic of Kenya
In the High Court at Malindi
Miscellaneous Application E067 of 2022
SM Githinji, J
November 11, 2024
Between
Vincent Mogaka t/a Mogaka Bwongki & Co Advocates
Applicant
and
Yunus B Maimoon t/a Maimoon Medical Center
Respondent
Ruling
1. For determination is a Notice of Motion Application dated 24/6/2024, brought pursuant to Section 1A, 1B and 3A of the Civil Procedure Act; Order 7 Rule 3 and Order 10 rule 11 of the Civil Procedure Rules, 2010. The orders sought are framed as follows: -1. Spent.2. Spent.3. That pending the hearing and determination of this application, the honourable court be pleased to set aside its judgment dated 4/6/2024. 4.That pending the hearing and determination of this application, the honourable court be pleased to direct parties to set-off costs issued in favour of the Respondent vide the judgment dated 4/6/2024 with the amount already paid to the Respondent by the Applicant.5. That costs of this application be in the cause.
2. The application is based on the grounds found on the face of the motion and supported by the affidavit sworn by Dr. Yunus B. Maimoon on the even date and a supplementary affidavit he swore on 6/9/2024. The Applicant’s case is that on 14/6/2024, the Court adopted the certificate of taxation of costs dated 26/10/2022 as judgment and order. The impact of which required the Applicant to pay the Respondent an amount of Kshs. 758, 187. 95 inclusive of interest. The Applicant deposed that he had already paid to the Respondent the sum of Kshs. 935, 165/-, payment of which he made between 8/5/2019 and 5/11/2022. The Applicant is apprehensive that if the orders sought are not granted, the Respondent shall execute the orders causing him to be prejudiced in a manner not compensable in monetary value.
3. In response, the Respondent filed a replying affidavit sworn on 23/7/2024 by Mr. Vincent Mogaka, the Respondent and an advocate of the high court of Kenya, stating that the application is an afterthought of issues that ought to have been canvassed at taxation. That the amounts said to have been paid to him were for other services rendered to the Applicant as detailed therein.
4. The application was canvassed by way of written submissions which I have carefully considered.
5. Notably, the Applicant filed a similar application in another related suit, Miscellaneous Application No. 63 of 2022. Like in that application, and upon a cursory glance of the present application, the prayers sought are all pending inter partes hearing and determination of the application. The application is therefore spent and the court cannot issue orders in vacuum.
6. The outcome is that the application dated 24/6/2024 is dismissed with costs.
RULING READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 11TH DAY OF NOVEMBER, 2024. ...................................S.M. GITHINJIJUDGEIn the presence of; -1. Mr Michira holding brief for Mr Mogaka for the Respondent2. Mr Towett for the ApplicantMr Towett; -We request for stay to appeal.Mr Michira;-In the sister file they were granted a stay and did not comply with stay conditions. They don’t deserve a stay.Court; -Stay request is declined....................................S.M. GITHINJIJUDGE11/11/2024