[2008] KEHC 542 (KLR)
The court found that the application was incompetent because, according to binding Court of Appeal authority, an advocate seeking to enforce a taxed bill of costs must file a plaint and cannot simply move by notice of motion. The applicant's attempt to claim an additional Kshs. 10,000 not included in the certificate...
Source-derived case information.
- Citation
- [2008] KEHC 542 (KLR)
- Parties
- Plaintiff: Rustam Hira; Defendant: Delphis Bank Ltd (now known as Oriental Commercial Bank Ltd)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 76 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Judgment on Taxed Costs
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Taxation of Costs, Execution of Costs, Interest on Judgment Debt
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rustam Hira
Plaintiff
Delphis Bank Ltd (now known as Oriental Commercial Bank Ltd)
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Judgment on Taxed Costs
Legal Issues
- 1 Whether the applicant is entitled to judgment for the taxed costs without filing a plaint.
- 2 Whether the applicant can claim interest at 14% per annum instead of the 9% allowed under the Advocates Remuneration Order.
- 3 Whether the additional Kshs. 10,000/= claimed as further court fees is properly payable.
Ratio Decidendi
The court found that the application was incompetent because, according to binding Court of Appeal authority, an advocate seeking to enforce a taxed bill of costs must file a plaint and cannot simply move by notice of motion. The applicant's attempt to claim an additional Kshs. 10,000 not included in the certificate of taxation and to seek interest at a rate higher than that allowed by the Advocates Remuneration Order were also improper. Accordingly, the application was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The Notice of Motion dated 15.04.08 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Misc 76 of 2006
RUSTAM HIRA……………………….......….............PLAINTIFF
VERSUS
DELPHIS BANK LTD ………………………… DEFENDANT
(NOW KNOWN AS ORIENTAL COMMERCIAL BANK LTD)
RULING
Notice of Motion dated 15. 04. 08 seeking Judgment in the sum of Kshs. 203,428. 91.
This motion seeks to execute taxed bill of costs in that sum on the ground that there is no appeal against the taxation. And there has been no effort to pay. There is prayer for interest at the rate of 14 % p.a from the date of taxation. The applicant prays for Kshs. 10,000 /= costs which arose after taxation as further court fees.
I have examined the authority cited by Mr. Thuku Madzayo Mrima & Company Advocates –vs- Crown Printers & Stationers (K) Ltd. In that matter a client/Advocate bill taxed by the Taxing Master.
The Application was opposed. The Court, Hon. Justice Kimaru cited Court of Appeal decision Sharma -vs- Uhuru Highway Development (2001) 2 E.A 530 and South Nyanza Sugar Co. Ltd. –vs- Ochillo, Civil Appeal No. 127 of 2003, and ruled that for an Advocate to claim for a decree under taxation, he must file a plaint like other litigants. In this case there is opposition that an extra Kshs.10,000 /= has been added was not part of certificate of taxation and there is issue of rate of interest.
The Advocates Remuneration Order allows 9 % but application is seeking 14 % under the Civil Procedure Act section 27.
I say that two authorities Misc. 511 of 2004 and Misc.1458 of 2003 were delivered to court in the absence of opposed Counsel. I have not considered them.
In the view of the opposition and the Court of Appeal decisions above stated, I find that the application has not come to Court properly and the application incompetent. The same is dismissed with costs to the Respondent.
Orders accordingly.
DATED this 3rd day of November 2008.
JOYCE N. KHAMINWA
JUDGE