[2008] KEHC 2673 (KLR)
The court found that the motion to compel payment of Ksh.53,180/- in court fees was premature because the Deputy Registrar had not yet re-assessed the court fees as required by the consent order of 15th March 2006. Although a directive was issued by the Deputy Registrar on 9th March 2007 for the registry staff to...
Source-derived case information.
- Citation
- [2008] KEHC 2673 (KLR)
- Parties
- Plaintiff: Peter Kimathi Riungu; Plaintiff: Ronald Gitobu Mworia; Plaintiff: Julius Migos Ogamba; Defendant: Japheth S. Asige; Defendant: Sammy O. Anyanzwa
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 55 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Motion to Compel Payment of Court Fees
- Outcome
- motion struck out as premature
- Legal Topics
- Court Fees Assessment, Consent Orders, Motions to Compel, Costs Awards
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Kimathi Riungu
Plaintiff
Ronald Gitobu Mworia
Plaintiff
Julius Migos Ogamba
Plaintiff
Japheth S. Asige
Defendant
Sammy O. Anyanzwa
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Motion to Compel Payment of Court Fees
Legal Issues
- 1 Whether the defendant should be compelled to pay Ksh.53,180/- to the plaintiff on account of court fees before re-assessment by the Deputy Registrar.
- 2 Whether the motion is premature in light of the consent order requiring re-assessment of court fees by the Deputy Registrar.
Ratio Decidendi
The court found that the motion to compel payment of Ksh.53,180/- in court fees was premature because the Deputy Registrar had not yet re-assessed the court fees as required by the consent order of 15th March 2006. Although a directive was issued by the Deputy Registrar on 9th March 2007 for the registry staff to re-assess the fees, this had not been implemented. The court held that until the re-assessment is completed, it cannot issue an order for payment. Consequently, the motion was struck out as premature, and costs were awarded to the respondent. The court further directed the Deputy Registrar to re-assess the court fees within 15 days to avoid further delay.
Court Disposition
motion struck out as premature
Orders
- The motion dated 29th November 2007 is struck out with costs to the respondent assessed at Ksh.5,000/-.
- The Deputy Registrar is directed to re-assess the court fees within 15 days from the date of this ruling.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISC CIV APPLI 55 OF 2005
IN THE MATTER OF: JAPHETH ASIGGE AND SAMMY O. ANYANZWA PRACTISING AS
ASIGEKEVERENGE & ANYANZWA ADVOCATESAND RECOVERY OF FUNDS DEPOSITED
UNDER UNDERTAKING DATED 15TH APRIL2004
AND
IN THE MATTER OF: ORDER LII RULE 7 CIVIL PROCEDURERULES
AND SECTION 56 OF THEADVOCATES ACT AND ALL OTHERENABLING PROVISIONS OF THE LAW
PETER KIMATHI RIUNGU
RONALD GITOBU MWORIA
JULIUS MIGOS OGAMBA ……………………………….PLAINTIFFS
VERSUS
JAPHETH S. ASIGE
SAMMY O. ANYANZWA both practicing as
ASIGE KEVERENG & ANYANZWA ADVOCATES ...DEFENDANTS
RULING
By a motion dated 29th November 2007, the applicants sought for an order to direct the defendant to pay Ksh.53,180/- to the plaintiff on account of court fees. The motion is supported by the affidavit of Julius Ogamba.
When served with the motion, the defendant filed a replying to resist the same. It is the submission of Mr. Asige that the motion is premature because the court fees is yet to be re-assessed by the Deputy Registrar.
I have perused the affidavit filed in support and against the motion. I have also perused the record. It is apparent from the record that the parties recorded a consent order on 15th March 2006, in which the court fees was to be referred to the Deputy Registrar to re-assess within 15 days. On the 9th day of March 2007, Mr. Richard Kirui, a Deputy Registrar of this court directed the registry staff to re-assess the court fees. That directive appears to have been ignored by the registry staff. The applicant has now come before this court seeking for an order directing the defendant to settle court fees in the sum of Kshs.53,180/- on the basis of a copy of a receipt attached to the affidavit of Julius Ogamba.
I have considered the oral submissions of both Miss Obura learned advocate for the applicant and Mr. Asige learned advocate for his firm of advocates. It is clear that the Deputy Registrar did not re-assess the court fees as per the consent order recorded on 15. 03. 2006. It would appear the Deputy Registrar directed the registry staff to re-assess the same on 9. 3.2007 which directive has not been implemented. In the end I agree with the submissions of Mr. Asige that the motion is premature because the same was filed before the Deputy Registrar re-assessed the court fees. Consequently the motion is ordered struck out with costs assessed at Ksh.5,000/- to the Respondent. To avoid this matter procrastinating further I direct that the Deputy Registrar of this court do re-assess the court fees within 15 days from the date hereof. The filed be mentioned before this court on 22/4/2008.
Dated and delivered at Mombasa this 4th Day of March 2008.
J.K. SERGON
J U D G E
In open court in the presence of Miss Obura for the Applicant and Mr. Mwakireti h/b for Asige for Respondnent.