[2016] KEHC 2127 (KLR)
The court held that the consent judgment entered on 4th December 2015, which allowed the Advocate's application for judgment in terms of the taxed costs, rendered any subsequent proceedings on the reference moot. The court found that once judgment was entered by consent, there was nothing left for the court to...
Source-derived case information.
- Citation
- [2016] KEHC 2127 (KLR)
- Parties
- Applicant: Ouma Njoga & Company Advocates; Respondent: Bonn Mirindo T/A Skylark Investments Co. Ltd.
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 98 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Reference and Judgment Entry After Taxation of Costs
- Outcome
- Application allowed by consent; judgment entered for the Advocate in terms of the certificate of costs; each party to bear its own costs.
- Judges
- EM Muchoki
- Legal Topics
- Taxation of Costs, Advocate Remuneration, Certificate of Costs, Consent Judgment
- 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
Ouma Njoga & Company Advocates
Applicant
Bonn Mirindo T/A Skylark Investments Co. Ltd.
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Reference and Judgment Entry After Taxation of Costs
Legal Issues
- 1 Whether the consent judgment entered on 4th December 2015 precluded further determination of the reference.
- 2 Whether there remained any issue for the court to determine after judgment was entered for the Advocate in terms of the certificate of costs.
Ratio Decidendi
The court held that the consent judgment entered on 4th December 2015, which allowed the Advocate's application for judgment in terms of the taxed costs, rendered any subsequent proceedings on the reference moot. The court found that once judgment was entered by consent, there was nothing left for the court to determine, as the certificate of costs had been adopted as a judgment. Any further proceedings, including the reference, were overtaken by events and were therefore in vain. The court emphasized the finality of consent judgments and the principle that the court becomes functus officio once such a judgment is entered. Each party was ordered to bear its own costs.
Court Disposition
Application allowed by consent; judgment entered for the Advocate in terms of the certificate of costs; each party to bear its own costs.
Orders
- Judgment is entered for the Advocate in terms of the certificate of costs.
- Each party shall bear its own costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
MISC. CIVIL APPLICATION NO. 98 OF 2013
IN THE MATTER OF AN ADVOCATE
AND
IN THE MATTER OF THE ADVOCATES (REMUNERATION) ORDER, 2006
BETWEEN
OUMA NJOGA & COMPANY ADVOCATES …............................... APPLICANT
VERSUS
BONN MIRINDO
T/A SKYLARK INVESTMENTS CO. LTD. …............................... RESPONDENT
RULING
The Advocates Bill of costs herein was taxed on 26th August 2013 and a Certificate of Costs thereto signed by the taxing officer on 3rd September 2013, but before that on 29th August 2013 pursuant to Clause 11(1) Counsel for the Client had written to the taxing officer seeking for reasons for the taxation on all the items. The reasons were duly furnished to him by a letter dated 16th September 2013. Subsequently the Advocate filed the Notice of Motion dated 13th September 2013 seeking that the taxed costs be deemed a judgment. The record shows that on 11th October 2013 Counsel for the Client filed a Chamber Summons seeking orders that the amounts awarded by the Deputy Registrar be disallowed or the entire award be set aside and the matter be referred to a different taxing officer. That Chamber Summons is dated 10th October 2013. By then the Advocate's Notice of Motion had already been fixed for hearing on 24th October 2013. When the Advocates went before Chemitei J on that day Counsel for the Client indicated he had a reference whereupon the judge directed the matter be mentioned on 31st October 2013 and ordered that submissions be filed. On 31st October 2013 the matter was again adjourned to 4th December 2013 but come that day the matter was referred back to the registry. On 29th October 2013 and 16th January 2014 respectively the parties filed their submissions on the reference but before the reference could be determined Counsel for the Client filed an application to cease acting - see Chamber Summons dated 31st March 2014. On the other hand on 7th October 2015 the Advocate filed a Notice of Motion dated 7th September 2015 to amend his application dated 13th September 2013. However the record shows that come 3rd December 2015 Mr. Njoga, the Advocate/Applicant and Mr. Oyuko the Advocate for the Client/Respondent appeared before my brother Chemitei J and recorded a consent allowing the application dated 13th September 2013 with a stay of execution for 14 days. It was also directed that the matter was to be mentioned on 16th December 2015 and when the Advocates failed to attend on that day the matter was referred to the registry.
The application dated 13th September 2013 which was allowed by consent effectively entered judgment in favour of the Advocate for the taxed costs and this Court is at a loss as to why the same would then be fixed for hearing of the reference. Had the consent judgment entered on 4th December 2015 been brought to its attention this Court would not have dealt with the matter further because as things stand there is nothing remaining upon which this Court can make a determination judgment having been entered for the Advocate in terms of the certificate of costs. The subsequent proceedings have so to speak been in vain as the reference was overtaken by the consent judgment. Each party shall bear its costs. It is so ordered.
Signed, dated and delivered at Kisumu this 3rd day of November, 2016
E. N. MAINA
JUDGE
In the presence of:-
Mr. Mwamu for the Advocate/Applicant
N/A for the Client/Respondent
C/A: Serah Sidera