[2017] KEHC 6083 (KLR)
The court found that the applicant's bill of costs had been taxed and a certificate of taxation issued, with no evidence of appeal or setting aside. The respondents' claim of partial payment was unsupported by evidence. The court held that the applicant was entitled to judgment for the taxed costs as certified, and...
Source-derived case information.
- Citation
- [2017] KEHC 6083 (KLR)
- Parties
- Applicant: Wilson Mutiso Kasimu; Respondent: Johnbosco Mbuthu Makau; Respondent: Erick Nzivo Mumo; Respondent: David Kaloki Nganga
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 239 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Judgment on Taxed Costs
- Outcome
- application allowed
- Judges
- BC Koech
- Legal Topics
- Taxation of Costs, Certificate of Taxation, Execution of Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilson Mutiso Kasimu
Applicant
Johnbosco Mbuthu Makau
Respondent
Erick Nzivo Mumo
Respondent
David Kaloki Nganga
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Judgment on Taxed Costs
Legal Issues
- 1 Whether the applicant is entitled to judgment for the taxed costs as per the certificate of taxation.
- 2 Whether the respondents have provided sufficient evidence of partial payment of the taxed costs.
- 3 Whether delay in prosecuting the application bars the applicant from relief.
Ratio Decidendi
The court found that the applicant's bill of costs had been taxed and a certificate of taxation issued, with no evidence of appeal or setting aside. The respondents' claim of partial payment was unsupported by evidence. The court held that the applicant was entitled to judgment for the taxed costs as certified, and that the respondents' procedural objections were unsubstantiated. The application was therefore allowed as prayed, granting the applicant judgment for the taxed costs and a decree for execution.
Court Disposition
application allowed
Orders
- Judgment is entered for the applicant for the taxed costs of Kshs. 414,607 as per the certificate of taxation.
- A decree shall issue for the taxed costs in favour of the applicant.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
MISCELLANEOUS APPLICATION NO. 239 OF 2013
WILSON MUTISO KASIMU...............................APPLICANT
VERSUS
JOHNBOSCO MBUTHU MAKAU
ERICK NZIVO MUMO
DAVID KALOKI NGANGA...........................RESPONDENTS
RULING OF THE COURT
1. The Applicant herein has filed an Application dated 30/11/2015 seeking for the following prayers:-
(1) THAT judgment be and is hereby entered for the Applicant and a decree be issued for the taxed costs Kshs. 414,607/=.
(2) THAT costs be provided for.
The Application is supported by an annexed affidavit of Philip Nzuko learned Counsel in conduct of the matter on behalf of the Applicant sworn on even date and further on the following grounds:-
(a) That the Applicant’s bill of costs was taxed at Kshs.414,607/= and a Certificate of Taxation issued to that effect.
(b) That it is necessary that the Application be allowed to pave way for execution.
(c) That it is in the interest of justice to grant the orders sought.
2. The Application is opposed by the Respondents. The first Respondent filed a replying Affidavit on his own behalf and on behalf of his co-respondents, sworn on 6/2/2017 and filed on 7/2/2017 which raised the following grounds of opposition namely:-
(1) That the Application is defective, bad in law and should be dismissed in the first instance.
(2) That Application herein once filed should have been heard and determined within six (6) months.
(3) That the Application was served upon Respondents Advocates after an inordinately long period from the date of filing.
(4) That the Bill of Costs has been partially paid and hence Applicant is barred from claiming the entire amount.
(5) That the Application is uncalled for and is intended to embarrass harass and malign the Respondents names in the eyes of the public.
(6) That the Respondent are keen on the balance of the outstanding taxed costs.
(7) That the Application be dismissed with costs.
3. I have considered the Applicants Application as well as the Replying Affidavit of the Respondents. Indeed this is an Advocate Client Bill of Costs in which the Applicant had rendered legal services to the Respondents in an election related matter. The said bill of costs has since been taxed and a certificate of costs dated 31st July, 2013 issued. There is no evidence that the Respondents have appealed against the same. The Respondents seem to suggest that the said costs have partially been paid but they have not provided any evidence to that effect. The first Respondent vide paragraph 7 of the Replying Affidavit seems to suggest some partial payment but did not annex any copy of such. The 1st Respondent further in paragraph 11 of this Replying Affidavit seems anxious to know the outstanding balance so as to settle the same. This runs contrary to his assertion that the Applicants Application is calculated to embarrass and malign him in the eyes of the public. Again the Respondents contention that the Application should have been disposed of within six (6) months is not backed by any evidence as proof of indolence on the part of the Applicant.
4. In any event, the Respondents were at liberty to apply to have the Application dismissed for want of prosecution. They did not do so until they were served for the hearing herein. I am satisfied that the Applicant has shown that he is entitled to the amounts as taxed by the Deputy Registrar. The Respondents Advocates had participated in the taxation exercise and therefore the amounts arrived by the Deputy Registrar are legitimate since a certificate of costs dated 31/07/2015 was duly issued.
5. In the result it is the finding of this court that the Applicant’s Application dated 30/11/2015 has merit. The same is allowed as prayed.
Dated, signed and delivered at Machakos this 10thday of April 2017.
D. K. KEMEI
JUDGE
In the presence of:-
Musya for Applicant....................
C/A: Kituva....................................