[2014] KEHC 1544 (KLR)
The court held that the application was incompetent because the proper forum for challenging or seeking review of a certificate of costs issued by a subordinate court is the same subordinate court, not the High Court. The Advocates Remuneration Order provisions on taxation do not apply to subordinate courts, and...
Source-derived case information.
- Citation
- [2014] KEHC 1544 (KLR)
- Parties
- Respondent: Wilfred Mboya Musyoka; Applicant: Peter Mwololo Nthenge; Applicant: John Mulwa Maithya
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 106 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Enlarge Time to Object to Certificate of Costs and to Compel Reasons From Taxing Master
- Outcome
- application struck out with costs
- Judges
- BT Jaden
- Legal Topics
- Taxation of Costs, Certificate of Costs, Extension of Time, Jurisdiction of Subordinate Courts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilfred Mboya Musyoka
Respondent
Peter Mwololo Nthenge
Applicant
John Mulwa Maithya
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application to Enlarge Time to Object to Certificate of Costs and to Compel Reasons From Taxing Master
Legal Issues
- 1 Whether the High Court has jurisdiction to enlarge time for objecting to a certificate of costs issued by a subordinate court.
- 2 Whether the application to compel the Taxing Master to give reasons for the certificate of costs is properly before the High Court.
- 3 Whether the Advocates Remuneration Order applies to assessment of costs in subordinate courts.
Ratio Decidendi
The court held that the application was incompetent because the proper forum for challenging or seeking review of a certificate of costs issued by a subordinate court is the same subordinate court, not the High Court. The Advocates Remuneration Order provisions on taxation do not apply to subordinate courts, and there are no specific provisions in the Civil Procedure Rules or the Advocates Remuneration Order allowing the High Court to entertain such an application. Therefore, the application for extension of time and for compelling reasons from the Taxing Master should have been filed in the subordinate court that issued the certificate of costs.
Court Disposition
application struck out with costs
Orders
- The application dated 29/5/2013 is struck out as incompetent.
- The applicants shall pay the costs of the application to the respondent.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
MISC. CIVIL APPLICATION NO. 106 OF 2013
WILFRED MBOYA MUSYOKA …………….. PLAINTIFF/RESPONDENT
VERSUS
1. PETER MWOLOLO NTHENGE
2. JOHN MULWA MAITHYA........................DEFENDANTS/APPLICANTS
R U L I N G
1. The application dated 29/5/2013 is expressed to be under Order 50 rule 6 of the Civil Procedure Rules 2010 and rule 11 (4) of the Advocates Remuneration Order and all other enabling provisions of law. The application seeks orders that the court do enlarge time within which the Defendants/Applicants can object to the decision of the Taxing Officer for issuing the Certificate of Costs dated 2/4/2013. Secondly, that the court be pleased to compel the Taxing Master to give reasons for his decision to issue the Certificate of Costs dated 2/4/2013.
2. According to the affidavit in support and a further affidavit sworn by the Applicant, the Respondent did not file a bill of costs as required under paragraph 70 (sic) of the Advocates(Remuneration) Order 2009 and Order 21 rules 5 & 8 of the Civil Procedure Rules. It is averred that the Applicant was not aware of the assessment of costs as the same was done ex parte.
3. In opposition to the application, the Respondent filed a replying affidavit. It is averred that no bill of costs is filed in the lower court and parties only request for assessment. That no reasons for the delay have been given and that in any event this application ought to have been filed before the court where the objection proceedings ought to have been filed.
4. The application was canvassed by way of written submission which I have duly considered.
5. The Certificate of Costs that is the subject of this application is dated 2/4/13. The application relates to the assessment of costs in the lower court. Under Order 21 rule 9 (2)of the Civil Procedure Act 2010, after costs have been ascertained, a Certificate of Costs is issued by the magistrate. The Applicant ought to have gone back to the same court to make any other applications that he deemed necessary. The provisions of the Advocates Remuneration Order on taxation do not apply to the subordinate court. My view of the matter is that in the absence of any specific provisions in the Civil Procedure Rules and the Advocates Remuneration Order, the Applicant ought to have gone back to the same court for the setting aside and/or for a review of the assessed costs. The application for the extension of time ought to have been filed in the same court.
6. With the foregoing, I find the application incompetent and strike out the same with costs.
………………………….
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 3rdday of October 2014.
………………………………………
B. THURANIRA JADEN
JUDGE