[2005] KEHC 2646 (KLR)
The court found that the taxing officer erred in applying Schedule VI L to the matter, as the proceedings were commenced by Originating Summons with a quantified claim, and the schedule applies to any proceedings, not just suits commenced by plaint. The correct approach was to consider whether Schedule VI (a) or (b)...
Source-derived case information.
- Citation
- [2005] KEHC 2646 (KLR)
- Parties
- Applicant: Shah & Parekh Advocates; Respondent: Apollo Insurance Co. Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 260 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Taxation
- Outcome
- application allowed
- Judges
- CN Mugo
- Legal Topics
- Taxation of Costs, Application of Schedule Vi, Originating Summons, Discretion of Taxing Officer
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shah & Parekh Advocates
Applicant
Apollo Insurance Co. Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Taxation
Legal Issues
- 1 Whether Schedule VI of the Advocates (Remuneration) Order applies where proceedings were commenced by Originating Summons and not by plaint.
- 2 Whether the taxing officer erred in principle by applying Schedule VI L in the absence of a plaint.
Ratio Decidendi
The court found that the taxing officer erred in applying Schedule VI L to the matter, as the proceedings were commenced by Originating Summons with a quantified claim, and the schedule applies to any proceedings, not just suits commenced by plaint. The correct approach was to consider whether Schedule VI (a) or (b) applied, depending on whether the Originating Summons was defended. The court held that the Principal Deputy Registrar misapplied the law and allowed the application, referring the matter back to the taxing officer for reconsideration with proper directions.
Court Disposition
application allowed
Orders
- The application is allowed.
- The matter is referred back to the taxing officer for reconsideration as prayed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI MISC. APPLICATION NO. 260 OF 2003
SHAH & PAREKH ADVOCATES………………………. PLAINTIFF
VERSUS
APOLLO INSURANCE CO. LTD ………………….…... DEFENDANT
RULING
By a Chamber Summons dated 1st April 2004 the Applicant herein requests the Court to interfere with the taxation done on 19th June 2003 and the subsequent Ruling of the taxing officer dated 26. 06. 03, to set aside the taxation and to refer the matter back to the taxing officer “with proper directions on the taxation thereof.”
The Applicant complains that there having been no suit (read plaint) filed, schedule VI adopted by the taxing officer did not apply. The Applicant argues that the taxing officer acted “in excess of” her discretion and abused the same, misdirected herself and committed errors in principle by so acting “in excess of her discretion” and contrary to well established legal principles. I note that the Applicant has no complaint about the figure allowed in the taxation. Despite reasons having not been obtained I find that the same were sufficiently provided for in the Ruling of 26. 06. 03 and do consider the application appropriate for my consideration and determination.
It does not strike me as surprising that an application such as this has been would be filed since the provisions of Schedule VI (a) and (b) are very clear as applying to (in respect of (a)
“any proceedings (whether commenced by plaint, originating summons or notice of motion) …….. where the value of the subject matter can be determined from the pleading, judgment or settlement between the parties………….”
and (in respect of(b))
“…….any proceedings described in (a) …. where the value of the subject matter can be determined from the pleadings, judgment or settlement between the parties……..”
Although the parent file was not presented before the Court for perusal, it is clear from the record that although no plaint was filed, an application by Originating Summons was filed in Court with a quantified claim of Shs.485,300/=, which from the submissions before the taxing officer, was settled amicably through negotiations. Clearly either schedule VI (a) or (b) would apply herein depending on whether the Originating Summons was defended or not. The schedule talks of any proceedings not suit.
In the premises I find that the Principal Deputy Registrar was wrong in applying Schedule VI L and do allow this application. The matter is referred back to the taxing officer for reconsideration as prayed. Costs to the Applicants.
Dated and Delivered at Nairobi this 21st day of January 2005
M.G. Mugo
Judge
In the presence of:
Mr. Mutua present for the Applicant
Mr. Tiego present for the Respondent