[2017] KEHC 5078 (KLR)
The court found that the applicant was not properly served with notice of the taxation proceedings due to an error in the postal address, resulting in the hearing proceeding ex parte. This amounted to a violation of the cardinal rule of natural justice that no party should be condemned unheard. Consequently, the...
Source-derived case information.
- Citation
- [2017] KEHC 5078 (KLR)
- Parties
- Applicant: S. Musalia Mwenesi Advocates; Respondent: Jack & Jill Supermarket Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 527 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Setting Aside Taxation Proceedings
- Outcome
- application allowed; proceedings and decision of taxing master set aside; bill of costs remitted for fresh taxation
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Setting Aside Orders, Taxation of Costs, Ex Parte Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
S. Musalia Mwenesi Advocates
Applicant
Jack & Jill Supermarket Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Setting Aside Taxation Proceedings
Legal Issues
- 1 Whether the proceedings and decision of the taxing master should be set aside due to lack of notice and ex parte hearing.
- 2 Whether the bill of costs should be remitted for taxation before a different taxing master.
- 3 Whether a stay of execution is necessary after setting aside the impugned decision.
Ratio Decidendi
The court found that the applicant was not properly served with notice of the taxation proceedings due to an error in the postal address, resulting in the hearing proceeding ex parte. This amounted to a violation of the cardinal rule of natural justice that no party should be condemned unheard. Consequently, the court held that the proceedings and decision of the taxing master must be set aside in their entirety. The bill of costs was ordered to be remitted for taxation before a different taxing master after due notice to both parties. The prayer for stay of execution was rendered moot as there was no longer an order to execute.
Court Disposition
application allowed; proceedings and decision of taxing master set aside; bill of costs remitted for fresh taxation
Orders
- The decision and proceedings of the taxing master are set aside in their entirety.
- The bill of costs dated 27th November, 2015 shall be remitted for taxation before a different taxing master after due notice to both parties.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISC. APPLICATION NO. 527 OF 2015
S. MUSALIA MWENESI ADVOCATES........................APPLICANT
VERSUS
JACK & JILL SUPERMARKET LIMITED................RESPONDENT
RULING
This is an application by way of Notice of Motion dated 3rd June, 2016 seeking a stay of execution of the decision of the taxing master made on 5th May, 2016. There is also a prayer that the decision and the entire proceedings thereof be set aside. There is another prayer that the court determines the justification of the filing of the bill of costs by the advocate yet the suit was dismissed for want of prosecution. Alternatively the bill of costs dated 27th November, 2015 be remitted for taxation.
The application is supported by an affidavit sworn by a director of the respondent/ applicant. Other grounds are set out on the face of the application. An order was made for filing submissions but only the respondent /applicant complied.
I have gone through the application and the submissions by the respondent applicant. It is clear to the court that there was a glaring mistake in the respondent/ applicant’s postal address used by his then advocate to send notices. That alone is enough to set aside the proceedings and determination of the bill of costs because the bottom line is that the hearing proceeded ex-parte.
The respondent/ applicant was condemned unheard and the cardinal rule of natural justice is that no party should be condemned without a hearing. Without going to the merits of the bill of costs, I am persuaded that the application should succeed. Accordingly the decision and proceedings of the taxing master are set aside in their entirety. Having said so, the prayer for stay of execution is a moot point because one cannot execute an order that does not exist.
The bill of costs shall be remitted for taxation before a different taxing master after due notice to both parties. Each party shall bear their own costs.
Dated, signed and delivered at Nairobi this 6th Day of April, 2017.
A. MBOGHOLI MSAGHA
JUDGE