[2005] KEHC 192 (KLR)
The court held that the application to set aside the taxing master's decision was improperly brought because the applicant had not sought enlargement of time to obtain reasons for the taxation as required under Rule II (4) of the Advocates Remuneration Rules. Without the reasons for taxation, the court lacked...
Source-derived case information.
- Citation
- [2005] KEHC 192 (KLR)
- Parties
- Applicant: Shah & Parekh; Respondent: Apollo Insurance Co. Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 328 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Taxing Master's Decision
- Outcome
- application dismissed with costs
- Judges
- CN Mugo
- Legal Topics
- Taxation of Costs, Advocates Remuneration Rules, Judicial Discretion in Taxation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shah & Parekh
Applicant
Apollo Insurance Co. Ltd.
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Taxing Master's Decision
Legal Issues
- 1 Whether the court should set aside the taxing master's decision on taxation delivered on 8th October 2003.
- 2 Whether the application was properly before the court in light of the Advocates Remuneration Rules regarding reasons for taxation and enlargement of time.
Ratio Decidendi
The court held that the application to set aside the taxing master's decision was improperly brought because the applicant had not sought enlargement of time to obtain reasons for the taxation as required under Rule II (4) of the Advocates Remuneration Rules. Without the reasons for taxation, the court lacked jurisdiction to entertain the application. The applicant's failure to follow the prescribed procedure rendered the application fatally defective, and as such, the orders sought could not be granted.
Court Disposition
application dismissed with costs
Orders
- The application is dismissed.
- Costs of the application are awarded to the respondent.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Misc Appli 328 of 2003
SHAH & PAREKH …………………..…………….…….......……………… PLAINTIFF
VERSUS
APOLLO INSURANCE CO. LTD. …………..…………………….….. DEFENDANT
RULING
The Applicant herein seeks orders under a Chamber Summons dated 1st April 2004 as follows:
1. That the Honourable Court be pleased to set aside the taxing masters’ decision on the taxation delivered on 8th October 2003.
2. That this Honourable Court be pleased to refer the matter back to the taxing master with directions on the proper manner of taxation.
3. That costs of this application be provided for.
The Applicants complains that the decision of the taxing master has no legal basis, and that the same was arrived at after undue “excess and abuse” of discretion and that the taxing master failed in not disclosing the schedule under which the Bill was taxed. I find the latter argument nonsensical since the Remuneration Order is very clear that that costs of proceedings in the High Court will ordinarily be awarded under Schedule VI.
The Respondents have opposed this application on the grounds that the same is either premature or statute barred given the provisions of the Advocates Remuneration Rules II (1) and II (2). The Applicants reply to this is that they filed the application since reasons requested for from the Registrar were delayed. I agree with the Respondents that this sort of application is not the correct procedure where reasons are delayed. Under Rule II (4) this Court is empowered to enlarge the time prescribed under Rule II but on application by the objector (applicant) and with appropriate notice to the Respondent. (other parties). Until reasons are given it appears the judge will ordinarily have no jurisdiction to entertain an application such as this one. I find that the Ruling delivered on 8th October 2003 does not help this Court much in dealing with the objection filed herein. However as the Applicants never asked the Court for enlargement to obtain the reasons behind the taxation I find that the application is improperly brought and order sought cannot therefore be granted. The same is dismissed with n order as to costs.
Dated and Delivered at Nairobi this 21st day of January 2005.
M.G. Mugo
Judge
In the presence of:
Mr. Mutua present for Mereka & Company Advocates for the Applicant
Mr. Tiego present for Shah & Parekh Advocates for the Respondent