[2023] KEELRC 2957 (KLR)
The court found that the execution proceedings which formed the basis for the taxation of auctioneer's costs had been set aside by consent of the parties following a valid stay of execution order. As a result, the Taxing Master had no jurisdiction to tax the bill of costs arising from those proceedings. The court...
Source-derived case information.
- Citation
- [2023] KEELRC 2957 (KLR)
- Parties
- Applicant: Joel Titus Musya T/A Makuri Auctioneers; Respondent: Tamarind Management Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Case E037 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Chamber Summons Seeking to Set Aside Taxation and Certificate of Costs
- Outcome
- application allowed; ruling and certificate of costs set aside; each party to bear own costs; file closed
- Judges
- AK Nzei
- Legal Topics
- Taxation of Costs, Auctioneer Costs, Stay of Execution, Contempt of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joel Titus Musya T/A Makuri Auctioneers
Applicant
Tamarind Management Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Chamber Summons Seeking to Set Aside Taxation and Certificate of Costs
Legal Issues
- 1 Whether the taxation of auctioneer's costs was valid where execution had been set aside by consent due to a stay of execution order.
- 2 Whether the Taxing Master had jurisdiction to tax the bill of costs after the execution proceedings were set aside.
- 3 Whether the applicant was entitled to have the ruling and certificate of costs set aside.
Ratio Decidendi
The court found that the execution proceedings which formed the basis for the taxation of auctioneer's costs had been set aside by consent of the parties following a valid stay of execution order. As a result, the Taxing Master had no jurisdiction to tax the bill of costs arising from those proceedings. The court held that the taxation and resultant certificate of costs were invalid, and therefore set aside both the ruling of the Deputy Registrar and the certificate of costs. The application was unopposed, and the court was satisfied that the applicant was entitled to the orders sought.
Court Disposition
application allowed; ruling and certificate of costs set aside; each party to bear own costs; file closed
Orders
- The Ruling of Hon. Lesootia Saitabau, Deputy Registrar, delivered on 27th September 2021 and any resultant certificate of cost are hereby set aside.
- Each party will bear its own costs of these proceedings.
Full Case Text
Judgment text and source record
19 paragraphs
Musya t/a Makuri Auctioneers v Tamarind Management Ltd (Miscellaneous Case E037 of 2021) [2023] KEELRC 2957 (KLR) (16 November 2023) (Ruling)
Neutral citation: [2023] KEELRC 2957 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Mombasa
Miscellaneous Case E037 of 2021
AK Nzei, J
November 16, 2023
Between
Joel Titus Musya T/A Makuri Auctioneers
Applicant
and
Tamarind Management Ltd
Respondent
Ruling
1. The application before me is the Respodnent/Appellant’s Chamber Summons dated 28/9/2021 and filed in Court on 30/9/2021. The application is expressed to be a Memorandum of Appeal filed pursuant to rule 55(4) & (5) of the Auctioneers Rules, 1997 from the Ruling of Hon. Lesootia Saitabau, Deputy Registrar, delivered on 27/9/2021 in the cause herein. The following order are sought:-a.Spendb.Spendc.Spendd.That this Court be pleased to set aside the Ruling of Lesootia Saitabau – Deputy Registrar delivered on 27th September 2021 and any resultant certificate of costs.e.That the Court be pleased to allow the appeal with costs.
2. The application sets out on its face the grounds on which it is founded, which grounds are replicated in the affidavit of Nicholus Weru Advocate sworn on 28th September 2021 in support of the application. It is deponed in the said affidavit:-a.that the decision of Hon. Lesootia Saitabau delivered herein on 27/9/2021 awarded the Respondent Auctioneers costs of ksh. 213,556. 00 on account of a decree issued in CM ELR 450 of 2018 (Anderson Fedheha Buni v Tamarind management Ltd).b.that the taxation was based on a bill of costs dated 25th June 2021 filed by the Respondent on the same date.c.that following proclamation of the Applicant’s goods on 28th May 2021, the Applicant filed an application for contempt of Court in Mombasa ELRC Appeal No. 10 of 2020 (Anderson Fedheha Buni & Another v Tamarind Management Ltd) as the Respondent had executed illegally as there was an order of stay of execution issued by the ELRC on 28th May 2021. d.that the Respondent’s Counsel on record herein appeared in Court on 15th June 2021, informed the Court that execution had been levied on misinformation and sought forgiveness, upon which by consent, the execution proceedings commenced by way of proclamation of 28th May 2021 was set aside and the Respondent was discharged from the contempt proceedings.e.that in obvious contempt of Court, the Respondent proceeded to file and to serve a bill of costs, which is the subject of the proceedings herein, with full knowledge that (execution) had been set aside by this Court with their consent.f.that the Taxing Master did not have jurisdiction to tax the bill of costs as the proclamation of 28th May 2021 was set aside by this Court in Appeal No. 10 of 2020, by consent of the parties.g.that the appeal herein was filed without undue delay.
3. Documents annexed to the said supporting affidavit are shown to include the aforementioned contempt application and orders issued thereon as indicated by the Applicant.
4. Apart from a preliminary objection dated 15th June 2022 which the Respondent filed on 17th August 2022, and which I determined vide this Court’s Ruling delivered on 2nd February 2023, the Respondent does not appear to have opposed the application/appeal herein. The same is unopposed, and, being satisfied that execution proceedings that gave rise to the impugned taxation of Auctioneer’s costs had been levied in contempt of valid stay orders, and having considered written submissions filed, I hereby allow the Chamber Summons dated 28th September 2021 in the following terms:-a.The Ruling of Hon. Lesootia Saitabau, Deputy Registrar, delivered on 27th September 2021 and any resultant certificate of cost are hereby set aside.b.Each party will bear its own costs of these proceedings.c.The Court’s record/file herein is hereby closed.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 16th NOVEMBER 2023. AGNES KITIKU NZEIJUDGEOrderThis Ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable Court fees.Agnes Kitiku NzeiJudgeAppearance:…………………… for Appellant…………………… Respondent3MISC E037/2021