[2016] KEELC 1232 (KLR)
The court found that the Deputy Registrar failed to directly address the matters raised by the Advocate/Applicant, including admissions by the respondent and supporting evidence regarding the Bill of Costs. The failure to consider these relevant factors amounted to an error in the exercise of discretion....
Source-derived case information.
- Citation
- [2016] KEELC 1232 (KLR)
- Parties
- Applicant: Ratemo Oira & Co. Advocates; Respondent: Magereza Savings and Credit Co-operative Society Ltd
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 54 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal of Bill of Costs
- Outcome
- Application allowed. Ruling of Deputy Registrar set aside. Bill of Costs reinstated and to be taxed afresh before a different Deputy Registrar.
- Judges
- MM Gitumbi
- Legal Topics
- Taxation of Costs, Bill of Costs, Advocate Client Fees, Land Valuation, Instruction Fee, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ratemo Oira & Co. Advocates
Applicant
Magereza Savings and Credit Co-operative Society Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal of Bill of Costs
Legal Issues
- 1 Whether the Deputy Registrar erred in dismissing the Advocate/Applicant's Bill of Costs without taxation.
- 2 Whether the Bill of Costs should be reinstated and taxed by a different Deputy Registrar.
- 3 Whether the Deputy Registrar failed to consider relevant admissions and evidence presented by the Applicant.
Ratio Decidendi
The court found that the Deputy Registrar failed to directly address the matters raised by the Advocate/Applicant, including admissions by the respondent and supporting evidence regarding the Bill of Costs. The failure to consider these relevant factors amounted to an error in the exercise of discretion. Consequently, the court set aside the ruling dismissing the Bill of Costs, reinstated the Bill, and directed that it be taxed afresh before a different Deputy Registrar to ensure fairness and proper consideration of all issues raised.
Court Disposition
Application allowed. Ruling of Deputy Registrar set aside. Bill of Costs reinstated and to be taxed afresh before a different Deputy Registrar.
Orders
- The Ruling delivered on 18th June 2015 by Deputy Registrar Sharon Mwayuli is set aside.
- The Bill of Costs dated 28th January 2015 is reinstated.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ENVIRONMENTAL AND LAND COURT
ELC. MISC.CASE NO. 54 OF 2015
IN THE MATTER OF TAXATION OF COSTS
BETWEEN
RATEMO OIRA & CO.ADVOCATES……………………..ADVOCATE/APPLICANT
AND
MAGEREZA SAVINGS AND CREDIT
CO-OPERATIVE SOCIETY LTD………….CLIENT/RESPONDENT
RULING
Coming up before me for determination is the Notice of Motion dated 8th July 2015 in which the Advocate/Applicant seeks for the following orders:
Spent.
That this court do set aside the Ruling of the Deputy Registrar dated 18th June 2015 dismissing the Advocate/Applicant’s Bill of Costs dated 28th January 2015 (hereinafter referred to as the “Bill of Costs”);
That this court be pleased to reinstate the Bill of Costs and order that the same be taxed by a different Deputy Registrar;
That this court be pleased to order that the Bill of Costs be taxed on a priority basis; and,
That the costs of this Application be provided for.
The Application is premised on the grounds appearing on its face together with the Supporting Affidavit of Ratemo Oira, sworn on 8th July 2015, in which he averred that he is an Advocate of the High Court of Kenya who has the conduct of this matter for and on behalf of the Applicant. He averred further that the Bill of Costs was dismissed by Deputy Registrar Hon. Sharon Mwayuli on 18th June 2015 without taxing it. He averred further that the learned Deputy Registrar:-
Failed to consider that the claim was not disputed by the client.
Failed to consider that the submissions filed by the Client/Respondent’s advocates on item 2 and 18 on perusal of documents where the client said the amount of Kshs. 50/- be allowed and therefore Kshs. 10,750/- be taxed off in each of the items.
Failed to consider paragraph 2(c) where the Client/Respondent’s advocates admitted the amount allowable is Kshs. 210/- for drawing of letters and urged the Deputy Registrar to tax off Kshs. 10,590/- in times 4, 16 and 20.
Failed to consider that the Client/Respondent’s advocates had admitted that in paragraph 2(f) item 21 relating to service of the documents to the vendor’s advocates admitted that they are entitled to Kshs. 500/- and to tax off Kshs. 10,300/-.
Failed to consider that the mode of communication on telephone was through his cell phone no. 0722542958 with the client on 0722542705 and that to commute he used his Toyota Rav 4 registration no. KAX 118V.
Failed to consider that the Client/Respondent’s advocate did not urge the prayer for dismissal of the Bill of Costs but urged the court to be fair on both sides.
Failed to consider that the value of the property and award of instruction fee on parcel of land valued at Kshs. 8. 8 billion using decided case of Joreth Limited versus Kigano & Associates (2000) E.A. 92.
Failed to consider that he attached copies of the title deed for L.R. No. 12979/4 I.R. No. 68946 comprising 1652 acres valued at Kshs. 8. 8 Billion.
Failed to consider Vincent Sosi’s letter dated 22nd October 2012 addressed to him concerning the said parcel of land and letter dated 24th October 2012 forwarding copies of receipts on clearance of land rates with the Nairobi City Council (as it then was).
Failed to consider their letter dated 19th October addressed to the Managing Director Villa Point Company Limited.
Failed to consider that he did an official search at the Central Registry Lands Office Nairobi on 24th October 2012 and was allocated search No. 1480 and paid Kshs. 500/- for the search.
Failed to consider that on 6th November 2012 he did an official search at the Central Registry Lands Office Nairobi and paid Kshs. 5000/= which was allocated no. 372.
Failed to consider that the vendor had paid the outstanding land rates of Kshs. 89,401,691/- on 7th December 2012
Failed to consider the copes of unexecuted transfer and sale agreement which the Client/Respondent failed to execute due to failure to raise the down payment of Kshs. 300 million.
Failed to consider that on 14th August 2014 they demanded that the client pay them their fees for the services rendered.
On those grounds, the Applicant sought for this court to set aside the ruling of Deputy Registrar Sharon Mwayuli, reinstate the Bill of Costs and order that the same be taxed by a different Deputy Registrar.
I have perused the Ruling delivered in this matter by the Learned Deputy Registrar Sharon Mwayuli on 18th June 2015 and have noted that the matters raised by the Advocate/Applicant appear not to have been addressed directly. Whether or not there is merit in the matters that the Applicant has raised listed above as nos. 1-15 is a matter to be determined. In light of this finding, I hereby set aside the Ruling delivered on 18th June 2015, I reinstate the Bill of Costs and I direct that the Bill of Costs be taxed afresh before the Learned Deputy Registrar, Isabella Barasa.
It is so ordered.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 1ST
DAY OF APRIL 2016.
MARY M. GITUMBI
JUDGE