[2016] KEHC 2755 (KLR)
The court held that Rule 11 of the Advocate (Remuneration) Order is the applicable law for objections to decisions of the taxing officer. This rule mandates that any objection to the decision of the taxing officer, including applications to set aside taxation, must be heard by a Judge in Chambers and not by the...
Source-derived case information.
- Citation
- [2016] KEHC 2755 (KLR)
- Parties
- Plaintiff: Sifuna & Company Advocates; Defendant: Akhtar Shahid Butt; Defendant: Modern Coast Building Contractors
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 355 of 2002
- Procedural Posture
- Civil Appeal / Ruling on Forum for Hearing Application to Set Aside Taxation
- Outcome
- Application to be heard by the court, not the Deputy Registrar.
- Judges
- CA Otieno
- Legal Topics
- Taxation of Costs, Advocate Remuneration Order, Jurisdiction of Court, Procedure for Setting Aside Taxation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sifuna & Company Advocates
Plaintiff
Akhtar Shahid Butt
Defendant
Modern Coast Building Contractors
Defendant
Procedural Posture
Civil Appeal / Ruling on Forum for Hearing Application to Set Aside Taxation
Legal Issues
- 1 Whether an application to set aside a taxing officer's decision should be heard by the Deputy Registrar or by a Judge in Chambers.
- 2 Which procedural rules govern objections to taxation of costs.
Ratio Decidendi
The court held that Rule 11 of the Advocate (Remuneration) Order is the applicable law for objections to decisions of the taxing officer. This rule mandates that any objection to the decision of the taxing officer, including applications to set aside taxation, must be heard by a Judge in Chambers and not by the taxing officer or Deputy Registrar. The court found that the applicant was challenging the certificate of costs issued by the taxing officer, and therefore, the matter must be determined by the court. The court rejected the respondent's argument that the Deputy Registrar had jurisdiction, clarifying that the law does not distinguish between applications to set aside and references...
Court Disposition
Application to be heard by the court, not the Deputy Registrar.
Orders
- The application to set aside the taxation is to be heard before the court (Judge in Chambers), not the Deputy Registrar.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
HIGH COURT CIVIL APPEAL 355 OF 2002
SIFUNA & COMPANY ADVOCATES.................................PLAINTIFF
VERSUS
1. AKHTAR SHAHID BUTT
2. MODERN COAST BUILDING CONTRACTORS…DEFENDANTS
R U L I N G
1. When the application dated the Notice of Motion dated 12/8/2016 came up in court on the 13. 09. 2016, Mr. Khatib Advocate for the Respondent/Client asked for courts direction on where this application seeking setting aside orders taxation could be heard. He was of the view that it is due for hearing before the Deputy Registrar.
2. On his side Mr. Mkan for the client/applicant, was of the view that the matter should be heard before this court and relied on the provisions of Order 49 Rule 5 Civil Procedure Rules.
3. The application is disclosed to be grounded upon and invokes the provisions of paragraph 14 of the Advocate (Remuneration) Order as well as various provisions of the Civil Procedure Act and the Rules.
4. Whatever it is, that can be understood of the prayers in the application, the applicant is dissatisfied with the determination of the taxing officer in taxing the Bill of costs dated the 27/5/2015 by which the clients costs were taxed in the sum of Kshs.156,968. If my understanding of the dispute in the application be right then I take the position and view that Rule 11 of the Advocate Remuneration Order is the applicable law and it mandates that the dispute be determined by the court and not the taxing officer.
5. Rule 11 of the Order reads:-
Objection to decision on taxation and appeal to Court of Appeal
i) Should any party object to the decision of the taxing officer,he may within fourteen days after the decision give notice inwriting to the taxing officer of the items of taxation to which heobjects.
ii)The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection.
6. To this court the provision doesn’t distinguish between applications to set aside orders of the Deputy Registrar as taxing officer or a reference by the person objecting. It dictates that any objection to the decision of the taxing officer be heard before a Judge in Chambers.
7. In the matter before me the Applicant/Advocate contests the Certificate of costs which has led to issuance of the Notice to show cause.
8. I take it to be a decision by the taxing officer being challenged. It is therefore a matter that need to be dealt with by the court and not the taxing officer.
9. It is so ordered.
Dated at Mombasa this 10th day of October 2016.
HON P.J.O. OTIENO
JUDGE