DAVID IRUNGU NDEGWA T/A CITY MERCHANT vs GILBER JOSEPH KIBE [2002] KECA 81 (KLR)

The Deputy Registrar took into account the nature of the taxed work: the underlying application was for stay of execution pending appeal, and it had been struck out on preliminary objection because the applicant had not obtained leave of the High Court to appeal. Weighing the factors in the application and hearing the respondent's counsel, the court exercised its discretion to allow a much reduced fee. The stated figures are internally inconsistent, since Kshs.75,340 less Kshs.45,340 yields Kshs.30,000, not the Kshs.20,000 stated as allowed.

No determination was required on these items because the respondent's advocate consented to their disallowance. Consent, not judicial assessment, is recorded as the basis for removing items 6 and 7 from the bill, leaving item 1 as the only contested item. The disallowance by consent feeds into the computation of the final taxed figure of Kshs.26,750 before the addition of Kshs.1,337.50 to make Kshs.28,087.50 in all.

The applicant's advocate had been served with a notice of taxation for hearing on 20th August 2002, had earlier appeared for the hearing of the application and the settling of terms of the order, and had not withdrawn from representing the applicant. His absence was therefore treated as a deliberate decision to ignore the hearing rather than ground for an adjournment, and the ruling was made after hearing only the respondent's counsel.

After reducing item 1 and disallowing items 6 and 7 by consent, the Deputy Registrar arrived at a total of Kshs.26,750 on the bill and added Kshs.1,337.50, giving the all-inclusive figure of Kshs.28,087.50. This disposition is the operative order of the ruling. It is a discretionary taxation outcome specific to this bill and does not state a rule of law binding on other courts.