[2013] KEHC 3055 (KLR)
The court found that the applicant acted promptly in seeking to set aside the dismissal order, filing the application on the same day the order was made. The explanation for non-attendance was reasonable and unchallenged. The omission to date and sign the bill of costs was a technicality that could be rectified...
Source-derived case information.
- Citation
- [2013] KEHC 3055 (KLR)
- Parties
- Applicant: Muigai Kemei & Associates, Advocates; Respondent: The Administrators of the Estate of Simon Mokua Gichuru
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 293 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal of Bill of Costs
- Outcome
- application allowed; dismissal order set aside; bill of costs restored
- Judges
- DW Mbuteti
- Legal Topics
- Advocate Client Costs, Bill of Costs, Dismissal Orders, Setting Aside Orders
- 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
Muigai Kemei & Associates, Advocates
Applicant
The Administrators of the Estate of Simon Mokua Gichuru
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal of Bill of Costs
Legal Issues
- 1 Whether the dismissal of the advocate/client bill of costs for non-attendance should be set aside.
- 2 Whether the failure to date and sign the bill of costs renders it incurably defective.
Ratio Decidendi
The court found that the applicant acted promptly in seeking to set aside the dismissal order, filing the application on the same day the order was made. The explanation for non-attendance was reasonable and unchallenged. The omission to date and sign the bill of costs was a technicality that could be rectified without prejudice to the respondent. The interests of justice required that the bill of costs be restored for taxation, as the respondent had not denied the advocate's retainer. The court exercised its discretion to set aside the dismissal and allowed the applicant to file a properly dated and signed bill of costs within seven days, failing which the dismissal would stand...
Court Disposition
application allowed; dismissal order set aside; bill of costs restored
Orders
- The order of dismissal of 3rd May 2013 is set aside.
- The bill of costs is restored for taxation.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
Miscellaneous Application 293 of 2012 [if gte mso 9]><xml>
Normal 0 0 1 463 2640 22 6 3097 14. 00
</xml><![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]
MUIGAI KEMEI & ASSOCIATES, ADVOCATES……….………………………...……………..….…...APPLICANT
V
THE ADMINSTRATORS OF THE ESTATE
OF SIMON MOKUA GICHURU.……….……………….…................................................................…RESPONDENT
R U L I N G
1. The advocate/client bill of costs filed on 29th May 2012 was unsigned and also not dated. On 3rd May 2013 the taxing officer dismissed the bill on account of the Advocates’ non-attendance at taxation.
2. The Advocatehas now applied by notice of motion dated 3rd May 2013 for the main orders -
(i) That the dismissal order be set aside.
(ii) That the Advocate be granted leave to date and sign the bill of costs to enable it to be taxed.
3. In the supporting affidavit sworn by Mary W. Muigai, learned counsel for the Advocate, it is deponed that she was late only by a few minutes while she was trying to locate the taxing officer’s chambers. She also explained that failure to date and sign the bill of costs was inadvertent due to an oversight.
4. The Client has opposed the application by replying affidavit filed on 14th May 2013. It is sworn by Alex Inyangu, learned counsel for the Client. He deponed that on one other previous occasion, on 27th November 2012, the Advocate had failed to attend when the bill of costs first came up for taxation. Indeed the record of the court shows that on that date there was no appearance for the Advocate. But the Client’s counsel was not ready to proceed as he had just been appointed and needed time to get instructions. He did not apply for dismissal of the bill of costs.
5. It is also argued in the replying affidavit that the bill of costs is irregular and incurably defective for being undated and unsigned. The same argument was repeated at hearing of the application.
6. I have considered the application in light of the submissions made. I note that the application was filed the same day the order of dismissal was made. The Advocate acted without delay.
7. The explanation for failure to attend the taxing officer, that is, that he Advocate’s counsel was late only by a few minutes as she was trying to locate the taxing officer’s chambers, has not been challenged.
8. The fact that the bill of costs is not dated or signed is a technicality that can be easily rectified without prejudice to the Client. The Client has not denied retainer. The bill of costs ought to be taxed in the interests of justice.
9. I will therefore allow the application. The order of dismissal of 3rd May 2013 is set aside and the bill of costs restored. The Advocate shall file a copy of the bill of costs that is dated and signed within seven (7) days of delivery of this ruling which shall then be taxed in the usual way. In default the order of dismissal of 3rd May 2013 shall be automatically restored. The Client shall have the costs of this application. Those shall be the orders of the court.
DATED AND SIGNED AT NAIROBI THIS 29TH DAY OF MAY 2013
H. P. G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 31ST DAY OF MAY 2013