[2001] KEHC 425 (KLR)
The court found that the plaintiffs failed to provide cogent evidence linking the debit of Shs.84,630 from their mortgage account to the payment of the party and party costs taxed at Shs.72,250 in this suit. The only evidence presented was a statement showing the debit and an affidavit by the 1st plaintiff, but...
Source-derived case information.
- Citation
- [2001] KEHC 425 (KLR)
- Parties
- Plaintiff: Samuel Musau Ndunda; Plaintiff: Joseph Mutiso; Defendant: The Co-operative Bank of Kenya Ltd.; Defendant: Nguru Enterprises
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1177 of 1999
- Procedural Posture
- Civil Suit / Ruling on Application for Certification of Costs as Paid
- Outcome
- application dismissed with costs
- Judges
- T Mbaluto
- Legal Topics
- Party and Party Costs, Taxation of Costs, Evidence of Payment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Musau Ndunda
Plaintiff
Joseph Mutiso
Plaintiff
The Co-operative Bank of Kenya Ltd.
Defendant
Nguru Enterprises
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Certification of Costs as Paid
Legal Issues
- 1 Whether the plaintiffs have provided sufficient evidence that the party and party costs taxed at Shs.72,250 and payable to the defendants have been fully paid.
- 2 Whether the debit of Shs.84,630 from the plaintiffs' mortgage account constitutes payment of the taxed costs in this suit.
Ratio Decidendi
The court found that the plaintiffs failed to provide cogent evidence linking the debit of Shs.84,630 from their mortgage account to the payment of the party and party costs taxed at Shs.72,250 in this suit. The only evidence presented was a statement showing the debit and an affidavit by the 1st plaintiff, but there was nothing to indicate that the payment was made in respect of the taxed costs. The court held that mere assertions and speculation in the absence of factual proof are insufficient to support the application. Consequently, the application was dismissed as misconceived and incompetent.
Court Disposition
application dismissed with costs
Orders
- The application for certification of costs as paid is dismissed with costs to the defendants.
Full Case Text
Judgment text and source record
6 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL COURTS CIVIL SUIT NO. 1177 OF 1999
SAMUEL MUSAU NDUNDA …………………………. 1ST PLAINTIFF JOSEPH MUTISO ……………………………………… 2ND PLAINTIFF VERSUS THE CO-OPERATIVE BANK OF KENYA LTD. … 1ST DEFENDANT NGURU ENTERPRISES ……………………………. 2ND DEFENDANT
RULING
The plaintiff in this matter has lodged this application for an order that party and party costs taxed at Shs.72,250/= and payable by the plaintiff to the defendant be certified as fully paid by the plaintiff. The ground upon which the application is made is that the defendants’ Advocates have already been paid Shs.84,630/= from the plaintiffs’ mortgage account as costs. In attempt to substantiate that claim, the plaintiff have annexed to an affidavit sworn on 19. 12. 2000 by the 1st plaintiff Samuel Musau Ndunda a statement of the plaintiffs’ account with the defendant which shows that on 23. 12. 1999, some Shs.84,630/= was debited to the account and paid to M/S Onyango Ohaga & Co. Advocates. There is nothing in the statement to show that the debit was in respect of the party and party costs in this matter. As the plaintiffs have not tendered any other evidence to connect the debit with the case before court, what the 1st plaintiff states in his affidavit in support of this application is, at best, mere speculations and conjecture. The assertions have no factual basis.
There being no cogent evidence to support the allegations made by the 1st plaintiff in his affidavit, the application is clearly misconceived and incompetent. It is for that reason dismissed with costs.
Dated at Nairobi this 12th day of January, 2001. T. MBALUTO JUDGE