[2008] KEHC 4033 (KLR)
The court held that the application to set aside the certificate of taxation was incompetent because it was brought under the wrong legal provisions. The proper procedure for challenging a taxing officer's decision is set out in paragraph 11 of the Advocates Remuneration Order, which requires the applicant to first...
Source-derived case information.
- Citation
- [2008] KEHC 4033 (KLR)
- Parties
- Plaintiff: Mwaniki Gitau & Co. Advocates; Defendant: Mohamed Mohamoun Sayed Ahmed
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1082 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Certificate of Taxation
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Taxation of Costs, Advocates Remuneration Order, Ex Parte Taxation, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwaniki Gitau & Co. Advocates
Plaintiff
Mohamed Mohamoun Sayed Ahmed
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Certificate of Taxation
Legal Issues
- 1 Whether the application to set aside the certificate of taxation was brought under the correct legal provisions.
- 2 Whether the procedure for challenging a taxing officer's decision was properly followed.
- 3 Whether the absence of one party during taxation constitutes sufficient ground to set aside the certificate of taxation.
Ratio Decidendi
The court held that the application to set aside the certificate of taxation was incompetent because it was brought under the wrong legal provisions. The proper procedure for challenging a taxing officer's decision is set out in paragraph 11 of the Advocates Remuneration Order, which requires the applicant to first seek reasons from the taxing officer and then make a reference to the High Court. The court further found that the taxing officer is permitted to tax bills ex parte, and a procedural lapse that causes no prejudice is not sufficient to reverse the taxation. The provisions of the Civil Procedure Act cited by the applicant were found to be inapplicable. Consequently, the...
Court Disposition
application dismissed with costs to the respondent
Orders
- The application to set aside the certificate of taxation is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
MISCELLANEOUS NO. 1082 OF 2007
MWANIKI GITAU & CO. ADVOCATES ……………PLAINTIFF
VERSUS
MOHAMED MOHAMOUN SAYED AHMED ….…DEFENDANT
R U L I N G
Application dated 17/4/08 brought under Order 50 rule 17 Civil Procedure Code, Section 3A and 63 (e) Civil Procedure Code Cap.21 seeking orders to set aside certificate of taxation made on 8/2/2008 and that advocates/client Bill of Costs dated 29/6/2007 be taxed afresh. The ground for seeking these orders is that the Taxing Officer proceeded to tax the bill while only one party was in attendance.
On the outset this application is brought under the wrong provisions. See HCC (Milimani) Misc. Application No.37/2002 – Mereka & Co. Advocates vs. National Bank.
“A decision on taxation can only be interfered with by the High Court under the provisions of sub-paragraph (2) of paragraph 11 of the Advocates Remuneration Order.”
The procedure is to apply to taxing master for reasons for her decision and thereafter to make reference to High Court. The Taxing Officer is empowered to tax bills ex parte see rule 14 There is no provision for filing written submissions under the Advocates Remuneration Order but a mere procedural lapse which has caused no prejudice cannot lead to a reversal of taxation.
The provisions invoked Order 50 rule 17 Civil Procedure Code, Section 3A and 63 (e)of Civil Procedure Act are not appropriate for this application. In Behan and Okero Advocates vs. APA Insurance Co. Ltd. – Kisumu HCC No.8 of 2005 it was held that Section 63 (e) of the Act is a supplemental provision in its nature and procedure is not appropriate provision under which application can be brought.
Again Section 3Areserves the inherent powers of court and cannot be invoked where there are provisions under which the application can be brought. Order 50 rule 17simply says that the court may set aside ex parte orders.
As stated above the procedure of challenging decisions of the Taxing Officer must be made under Advocates Remuneration Order. This application is therefore incompetent and the same is hereby dismissed with costs to the respondent.
It is so ordered.
DATED and DELIVERED at Nairobi this 29th day of September 2008.
JOYCE N. KHAMINWA
JUDGE