Case ID:184863

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