[2005] KEHC 1795 (KLR)
The court found that the notice of taxation was not properly served on the advocate on record at the material time, as required by Rule 72 of the Advocates (Remuneration) Order. Since the bill of costs was taxed ex-parte without proper service, the order of taxation was liable to be set aside. The court held that it...
Source-derived case information.
- Citation
- [2005] KEHC 1795 (KLR)
- Parties
- Applicant: Muchangi Nduati & Co. Advocates; Respondent: John Chomba
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 711 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Strike Out Respondent's Application to Set Aside Taxation Order
- Outcome
- Order of taxation set aside; bill to be taxed afresh; costs to respondent.
- Legal Topics
- Taxation of Costs, Ex Parte Orders, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muchangi Nduati & Co. Advocates
Applicant
John Chomba
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Strike Out Respondent's Application to Set Aside Taxation Order
Legal Issues
- 1 Whether the order of taxation made ex-parte should be set aside due to improper service of the notice of taxation.
- 2 Whether the correct procedure for challenging the ex-parte taxation order was followed.
Ratio Decidendi
The court found that the notice of taxation was not properly served on the advocate on record at the material time, as required by Rule 72 of the Advocates (Remuneration) Order. Since the bill of costs was taxed ex-parte without proper service, the order of taxation was liable to be set aside. The court held that it is a general principle of law and procedure that ex-parte orders may be set aside to allow a party who was excluded to be heard, and this applies to taxation proceedings as well. The court therefore set aside the order of taxation and directed that the applicant's bill be taxed afresh before the taxing officer.
Court Disposition
Order of taxation set aside; bill to be taxed afresh; costs to respondent.
Orders
- The order of taxation is set aside.
- The applicant's bill is to be taxed before the taxing officer as soon as a date can be given.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
Misc Appli 711 of 2003
MUCHANGI NDUATI & CO. ADVOCATES …......………APPLICANTS
VERSUS
JOHN CHOMBA ……………..………………………….. RESPONDNT
RULING
The Applicant in this matter seeks to strike out the application of the Respondent who seeks to set aside the order of taxation in favour of the Applicant granted on the 18. 7.2004.
In this case the Notice of Taxation was served on Mr. Chebii on the 19. 5.2005 a time when Mr. Chebii was on record. At that date another firm of Advocates was on record. This is the only evidence before the court. It appears therefore the notice of termination was not served.
Rule 72 of the Advocates (Remuneration) Order (The Rules) is in the following terms: -
“When a bill of costs has been lodged for taxation as aforesaid, the registrar, upon payment of the prescribed fee, issue to the party lodging the bill a notice of the date and time (being not less than five days after the issue of such notice, unless a shorter time is specially allowed by the registrar) fixed for taxation thereof and shall also issue a copy of such notice, accompanied by a copy of the bill, to each advocate and other person whose name is endorsed on the bill as entitled to receive notice of the taxation thereof:
Provided that where any person so entitled to receive notice cannot be found at his last known address for service the taxing officer may in his discretion by order in writing dispense with service of notice upon such person.”
There is no explanation why the advocate on record at that time was not served.
Mr. Chebii says the proper procedure is under O.50 rule 17, which requires the court to set aside the orders made ex-parte.
Mr. Nduati on the other hand says this is not the procedure which should be by way of an objection brought under Rule 11(1) of the Rules which states: -
“Should any party object to the decision of the Taxing Officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the item of taxation to which he objects”
These Rules deals with different situations Order 50 rule 17 deals with the setting aside of an ex-parte order. Rule 11 relates to objection taken to particular items dealt with by a taxing officer.
In this case the problem relates to the bill having been taxed ex-parte.
I incline to the view that this is an order, which is capable of being set aside since a bill has been taxed ex-parte. It is a general principle of law and procedure that where anything has been done ex-parte it can be set aside, if the circumstance merit, to, allow a person to be heard who had been excluded. This applies to taxation as well as any other procedure.
In the result as no proper service of the Notice of taxation had been effected I set aside the order of taxation and order that the taxation of the Applicant’s bill be taxed before the taxing officer as soon as a date can be given. The costs will go to the Respondent.
Dated and delivered at Nairobi this15th day of July, 2005
P.J. RANSELY
JUDGE