[2007] KECA 133 (KLR)
The court held that the Deputy Registrar was correct in upholding the preliminary objection and striking out the bill of costs because the appellant failed to comply with rule 34(2) of the Court of Appeal Rules, which requires the successful party to prepare and submit a draft order for approval. The court...
Source-derived case information.
- Citation
- [2007] KECA 133 (KLR)
- Parties
- Appellant: National Bank of Kenya; Respondent: Behan & Okero Advocates
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 41 of 2005
- Procedural Posture
- Civil Appeal / Reference From Deputy Registrar's Decision on Taxation of Costs
- Outcome
- reference dismissed with costs
- Legal Topics
- Taxation of Costs, Preliminary Objection, Drafting of Orders, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
National Bank of Kenya
Appellant
Behan & Okero Advocates
Respondent
Procedural Posture
Civil Appeal / Reference From Deputy Registrar's Decision on Taxation of Costs
Legal Issues
- 1 Whether failure to prepare and submit a draft order for approval as required by rule 34(2) of the Court of Appeal Rules invalidates the taxation of a bill of costs.
- 2 Whether the Deputy Registrar was correct in striking out the bill of costs for procedural non-compliance.
Ratio Decidendi
The court held that the Deputy Registrar was correct in upholding the preliminary objection and striking out the bill of costs because the appellant failed to comply with rule 34(2) of the Court of Appeal Rules, which requires the successful party to prepare and submit a draft order for approval. The court emphasized that procedural requirements must be strictly followed, and non-compliance with such mandatory provisions justifies the striking out of the bill of costs. The reference was therefore dismissed with costs to the respondent.
Court Disposition
reference dismissed with costs
Orders
- The reference is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT KISUMU
Civil Appeal 41 of 2005
NATIONAL BANK OF KENYA.............….…..……….. APPELLANT
AND
BEHAN & OKERO ADVOCATES ………....………RESPONDENT
(An appeal from the ruling and order of the High Court of Kenya at Kisumu (Mr. Justice Barabara K. Tanui) dated 3rd December, 2004
in
H.C. MISC. C. APPLICATION NO. 114 OF 2004)
******************
R U L I N G
This is a reference from the decision of the Deputy Registrar of this Court pursuant to rule 9 of the Court of Appeal Rules.
The matter was before the Deputy Registrar for taxation of a bill of costs. It would appear that the applicant had not drawn the order for approval as required by rule 34(2) of the Rules. This is the point that was taken up by way of preliminary objection. It was Mr. Kenyariri’s contention that the correct procedure had not been followed. The Deputy Registrar accepted Mr. Kenyariri’s preliminary objection and proceeded to strike out the bill of costs.
It is that order that has given rise to this reference. It was Mr. Odunga’s contention that rule 34(2) of the Rules, deals with preparation of orders and has nothing to do with execution proceedings. He submitted that the holding by the Deputy Registrar was erroneous.
On his part Mr. Kenyariri contended that the Deputy Registrar was correct in striking out the bill of costs as the proper procedure had not been followed.
This reference raises the issue of procedure to be followed. Rule 34(2)(a) of the Rules provides that the party who has substantially been successful shallas soon as practicable, prepare a draft of the order and shall submit it for the approval of the other parties.
Having considered rules 34(2) and 105 of this Court’s Rules, what was before the Deputy Registrar and the submissions by counsel I am of the view that the Deputy Registrar was right in upholding the preliminary objection raised by Mr. Kenyariri. It is my view that the correct procedure must be strictly adhered to and that is what the Deputy Registrar, not in so many words, accepted by upholding the preliminary objection.
In view of the foregoing this reference is dismissed with costs.
Dated and delivered at KISUMU this 30th day of November, 2007.
E. O. O’KUBASU
………………………..
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR