[2005] KEHC 2608 (KLR)
The court held that the Deputy Registrar, acting as Taxing Master, has jurisdiction to tax Bills of Costs only where there are items for taxation as stipulated under the Advocates Remuneration Order. Where no such items exist, the Taxing Master is within their powers to strike out the Bill of Costs. The court found...
Source-derived case information.
- Citation
- [2005] KEHC 2608 (KLR)
- Parties
- Plaintiff: MUA Park Investments Limited; Defendant: Kenya National Assurance Company Ltd. (in liquidation); Respondent: Deposit Protection Fund Board
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 5357 of 1993
- Procedural Posture
- Chamber Summons / Ruling on Application to Set Aside Order Striking Out Bill of Costs
- Outcome
- application dismissed with costs to the plaintiff/respondent
- Judges
- CM Kariuki
- Legal Topics
- Taxation of Costs, Jurisdiction of Deputy Registrar, Advocates Remuneration Order, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
MUA Park Investments Limited
Plaintiff
Kenya National Assurance Company Ltd. (in liquidation)
Defendant
Deposit Protection Fund Board
Respondent
Procedural Posture
Chamber Summons / Ruling on Application to Set Aside Order Striking Out Bill of Costs
Legal Issues
- 1 Whether the Deputy Registrar acted without jurisdiction in striking out the Defendant's Bill of Costs.
- 2 Whether the Deputy Registrar's action contravened the court's decree ordering the Plaintiff to pay costs to the Defendant.
- 3 Whether the Defendant is entitled to have its Bill of Costs taxed in the absence of taxable items.
Ratio Decidendi
The court held that the Deputy Registrar, acting as Taxing Master, has jurisdiction to tax Bills of Costs only where there are items for taxation as stipulated under the Advocates Remuneration Order. Where no such items exist, the Taxing Master is within their powers to strike out the Bill of Costs. The court found that the Deputy Registrar did not act without jurisdiction nor contravene the decree ordering costs, as the absence of taxable items rendered the Bill of Costs untenable. Therefore, the application to set aside the Deputy Registrar's order was dismissed.
Court Disposition
application dismissed with costs to the plaintiff/respondent
Orders
- The application is dismissed with costs to the Plaintiff/Respondent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
Civil Case 5357 of 1993
MUA PARK INVESTMENTS LIMITED………....................……… PLAINTIFF
VERSUS
KENYA NATIONAL ASSURANCE COMPANY LTD.(IN LIQUIDATION)…… DEFENDANT
AND
DEPOSIT PROTECTION FUND BOARD …….................…..THIRD PARTY
RULING
This Chamber Summons, dated 31. 3.2004 seeks orders that:
1. This Court do set aside the order of the Deputy Registrar, dated 24. 3.2004 striking out the Defendants Bill of Costs.
2. The Defendants Bill of Costs, dated 7. 1.04 do proceed for taxation.
3. Costs of this application.
The application is brought under Rule 11 (2) of the Advocates (Remuneration) Order and Section 3A of Cap 21, Laws of Kenya; and is supported by an Affidavit of David Njogu of 7. 4.2004 and on the grounds that:
a) The Deputy Registrar acted without jurisdiction in striking out the defendant’s Bill of Costs.
b) The Deputy Registrar contravened the Decree made on 11. 11. 2003 which ordered the Plaintiff to pay costs of the suit to the Defendant.
c) It is in the interest of justice that the order of the Deputy Registrar be set aside and the Defendant be allowed to tax its Bill of Costs as contemplated in the decree made herein.
In opposition, the Respondent/Plaintiff, in its Replying Affidavit dated 5. 5.2004 avers that the Deputy Registrar after consideration of presentation by applicant’s counsel, struck out the Defendants Bill of Costs in exercise of this judicial discretionary power. Further, the Plaintiff gave a Notice of Preliminary Objection, dated 25. 05. 2004 and filed on 27. 5.2004 that the application herein is fatally defective and does not lie in law.
Upon perusal of the pleadings herein and the submissions by Learned Counsel for both parties, I dismiss the application with costs to the Plaintiff/Respondent, on the following grounds:
It is the law that the Deputy Registrar is the Taxing Master, and in that capacity it is his/her duty to Tax the Bills of Costs pursuant to the courts decrees. However, in discharging those functions, the Taxing Master is bound by the legal provisions as contained in the Advocates Remuneration Order. The said order lays down the method of taxation – that is the items of taxation as therein stipulated.
If the Taxing Master finds no items of taxation, as anticipated under Rule 11 (1) and (2) of the Advocates Remuneration Order, he had nothing to tax, and under those circumstances it is not correct, legally or factually to alledge violation of this courts order/decree that any party shall pay costs.
To recap, it is within the Deputy Registrar’s jurisdiction to tax Bills of Costs. This is only so, however, if there are items for taxation. If there aren’t, it is no violation of this court’s orders/decrees to strike out the taxation Bill as presented by any party or its counsel.
The application is dismissed with costs to the Plaintiff/Respondent.
Dated and Delivered in Nairobi this 27th day of May 2005.
O. K. MUTUNGI
JUDGE