Case ID:184863
Parties: None
Date Delivered: None
Case Type: None
Court: None
Judges: None
Citation: None
Lumatete Muchai & Company Advocates v Eden Transport and Logistics Limited [2021] eKLR
Case Metadata
Case Number:
Miscellaneous Application 154 of 2021
Parties:
Lumatete Muchai & Company Advocates v Eden Transport and Logistics Limited
Date Delivered:
13 Oct 2021
Case Class:
Civil
Court:
High Court at Mombasa
Case Action:
Ruling
Judge(s):
Olga Akech Sewe
Citation:
Lumatete Muchai & Company Advocates v Eden Transport and Logistics Limited [2021] eKLR
Court Division:
Commercial Tax & Admiralty
County:
Mombasa
Disclaimer:
The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL, COMMERCIAL & ADMIRALTY DIVISION
MISCELLANEOUS APPLICATION NO. 154 OF 2021
IN THE MATTER OF THE ADVOCATES ACT, CHAPTER 16 OF THE LAWS OF KENYA
AND
IN THE MATTER OF TAXATION OF ADVOCATE/CLIENT’S BILL OF COSTS
BETWEEN
LUMATETE MUCHAI & COMPANY ADVOCATES......................................APPLICANT
-VERSUS-
EDEN TRANSPORT AND LOGISTICS LIMITED........................................RESPONDENT
RULING
[1]
Before the Court for determination is the Chamber Summons application dated
19 July 2021.
It was filed herein by the law firm of
Lumatete Muchai and Company Advocates
for orders that:
[a]
The decision of the taxing master delivered on
14 July 2021
in so far as the same relates to the reasoning and determination pertaining to the Taxation of the Bill of Costs dated
15 October 2020
be set aside;
[b]
The Court be pleased to refer the matter back for re-taxation of the Bill of Costs dated
15 October 2020
with proper directions thereon;
[c]
In the alternative, the Court be pleased to exercise its inherent jurisdiction and re-tax the Bill of Costs dated
15 October 2020
or make directions for a fresh taxation.
[d]
The costs of the reference be provided for.
[2]
The application was filed pursuant to
Rules 2, 11(1)
of the
Advocates (Remuneration) Order
and
Section 3A
of the
Civil Procedure Act, Chapter 21
of the
Laws of Kenya
, on the following grounds:
[a]
That the learned taxing master erred in principle and made serious errors in failing to appreciate that the value of the subject matter in dispute in
USD 312,285/=
(equivalent to
Kshs. 32,789,925/=)
owed to the applicant by the respondent;
[b]
That the assessment of Bill of Costs dated
15 October 2020
at
Kshs. 395,527.66
is erroneous, manifestly inadequate and inordinately low amounting to an injustice to the applicant and not commensurate with the case at hand;
[c]
That the learned taxing master erred in principle in failing to issue justifiable reasons in taxing off the amount of
Kshs. 222,185/=
which amount was to be included in the award.
[d]
That the learned taxing master made serious errors in principle in failing to consider items 7 to 30 and 34 and 35 in its determination, which items the taxing master indicated in the ruling that they are drawn to scale and shall not be interfered with; and as a result thereby arrived at an award that is manifestly inadequate.
[e]
That the learned taxing master made serious errors in principle in failing to issue justifiable reasons in arriving at the award of
Kshs. 395,527.66
in its decision delivered on
14 July 2021.
[f]
That the learned taxing master erred in principle in failing to consider the applicant’s pleadings on record in regard to the said Bill of Costs dated
15 October 2020;
[g]
That it is in the interest of justice that the decision of the learned taxing master dated
14 July 2021
be set aside and the said Bill of Costs be taxed before another Deputy Registrar or by the Court.
[3]
The aforestated grounds were expounded on in the Supporting Affidavit sworn by
Mr. Muchai Lumatete Walubengo
on
19 July 2021,
to which
Mr. Walubengo
annexed not only copies of the documents pertinent to the impugned ruling, but also the ruling of the taxing officer dated
14 July 2021.
[4]
Although the application is unopposed, I note that the procedure set out in
Paragraph 11
of the
Advocates (Remuneration) Order
, was not complied with. That provision states thus in part:
(1) Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.
(2) 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.
[5]
The rationale for the provision is not difficult to discern. It is not always the case that an objection would be raised on all the items allowed by the taxing officer; and while it is appreciated that where a Deputy Registrar has delivered a Ruling, it would be superfluous to ask for reasons, it is always helpful for the Judge on reference to understand and appreciate the reasons for the taxing officer’s decision on the specific items challenged on a reference. This is especially so in this case where one of the complaints is that the taxing officer failed to consider items 7 to 30 as well as 34 and 35 in his determination.
[6]
In the premises, it is hereby directed that the strictures of
Paragraph 11(1) and (2)
of the
Advocates (Remuneration) Order
be complied with forthwith to enable the Court make a decision on the reference.
Orders accordingly.
DATED AND SIGNED AT MOMBASA THIS 13
TH
DAY OF OCTOBER 2021
OLGA SEWE
JUDGE