[2017] KEELRC 1881 (KLR)
The court held that since the bill of costs had been taxed and a Certificate of Taxation issued, and as neither the taxation nor the certificate had been set aside or altered, the application for summary judgment was merited. The court found that Section 51(2) of the Advocates Act applied, making the certificate...
Source-derived case information.
- Citation
- [2017] KEELRC 1881 (KLR)
- Parties
- Claimant: Samuel Moyaki; Respondent: Catering & Tourism Development Levy Trustees
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 459(N) of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Summary Judgment Following Taxation of Costs
- Outcome
- Application allowed. Judgment entered for the applicant for the taxed amount of Kshs. 78,204.
- Judges
- HS Wasilwa
- Legal Topics
- Taxation of Costs, Summary Judgment, Certificate of Taxation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Moyaki
Claimant
Catering & Tourism Development Levy Trustees
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Summary Judgment Following Taxation of Costs
Legal Issues
- 1 Whether summary judgment should be entered for the taxed costs against the claimant.
- 2 Whether Section 51(2) of the Advocates Act applies to party-to-party costs in the Employment and Labour Relations Court.
Ratio Decidendi
The court held that since the bill of costs had been taxed and a Certificate of Taxation issued, and as neither the taxation nor the certificate had been set aside or altered, the application for summary judgment was merited. The court found that Section 51(2) of the Advocates Act applied, making the certificate final as to the amount of costs. The pending Notice of Appeal did not operate as a stay or affect the finality of the certificate. Therefore, judgment was entered for the applicant for the taxed amount.
Court Disposition
Application allowed. Judgment entered for the applicant for the taxed amount of Kshs. 78,204.
Orders
- Judgment is entered for the applicant for the sum of Kshs. 78,204 plus costs of the suit.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
EMPLOYMENT AND LABOUR RELATIONS COURT
ATNAIROBI
CAUSE NO. 459(N) OF 2009
(Before Hon. Lady Justice Hellen S. Wasilwa on 19th January, 2017)
SAMUEL MOYAKI…………..….. CLAIMANT/RESPONDENT
VERSUS
CATERING & TOURISM DEVELOPMENT
LEVY TRUSTEES………..….. RESPONDENT /APPLICANT
RULING
1. The Application before Court is dated 5th May 2015. The Applicant Respondent seeks orders:
That summary Judgment be entered against the Claimant for the sum of Kshs. 78,204/= plus costs of this suit.
2. The Application is based on the following grounds:
(a) That bill of costs herein was on 17th April 2015, taxed and allowed as against the Claimant (Samuel Moyaki) in the sum of Kshs.78,204. 00.
(b)That Certificate of Taxation was issued on 22. 4.2015.
(c)That neither the said taxation nor the Certification ofTaxation has been altered or set aside since the date of issue.
(d)That this Hon. Court has jurisdiction to make the orders sought.
3. The Application is supported by the supporting affidavit of the Claimant herein dated 5th May 2015.
4. The Respondent opposed this application and filed their replying affidavit dated 8th June 2015.
5. The Respondent admitted contents of paragraphs 1, 2, 3 & 4 of the application but indicate that they had filed a Notice of Appeal over the same but it is yet to be prosecuted and they are still interested in pursuing it.
6. They want the application dismissed as the bill of costs is in the nature of Party to Party costs and not an Advocate to Client bill of costs and that provision of Section 51 (2) of Advocates Act are not applicable to this Court.
7. I have considered submissions of both parties. I note that the application by Claimant is for a specific pecuniary claim arising out of a taxation whereby the Certificate of Taxation has already been issued by the taxing matter.
8. Under Section 51 of Advocates Act:
1. ..” Every application for an order for the taxation of an advocate’s bill or for the delivery of such a bill and the delivering up of any deeds, documents and papers by an advocate shall be made in the matter of that advocate.
2. The certificate of the taxing officer by whom any bill has been taxed shall, unless it is set aside or altered by the Court, be final as to the amount of the costs covered thereby, and the Court may make such order in relation thereto as it thinks fit, including, in a case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs.
9. Since this is the law, I find that the application has been proved and is merited and I allow it and enter judgment for the Applicant on the amount taxed at Kshs.78,204/=.
Read in open Court this 19th day of January, 2017.
HON. LADY JUSTICE HELLEN WASILWA
JUDGE
In the presence of:
No appearance for Respondent
No appearance for Claimant