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ELCAllowedMiscellaneous Civil Application No. 48 of 2011· [2015] KEELC 199 (KLR)

Malindi Holdings & Estate Agents Ltd v Commissioner of Lands & 5 others [2015] KEELC 199 (KLR)

High Court of Kenya
9 October 2015
695 words in judgment
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The bottom line

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The High Court allowed Alma Holdings to collect Kshs.557,920 in taxed costs because Malindi Holdings waited too long to object to how the costs bill was filed.

What this practically means

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Executive summary

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The Applicant, Alma Holdings Ltd, moved the High Court at Malindi by an application dated 22nd April 2015 seeking judgment against the Respondent, Malindi Holdings & Estate Agents Ltd, in terms of a Certificate of Taxation issued on 15th August 2012 for Kshs.557,920/- with interest at court rates from 22nd February 2012, plus costs of the application. The claim arose from HCCC No. 105 of 2001, in which a Ruling of Ombija J dated 19th May 2008 struck out the suit as against the Applicant. The Applicant filed a Party and Party Bill of Costs on 15th November 2011 in a miscellaneous file, which was taxed on 22nd February 2012 and a Certificate of Taxation issued after the period for a reference expired. The Respondent opposed, contending that the Ruling of 19th May 2008 awarded no costs to any party, that the Bill of Costs should have been filed in the main file, and that the miscellaneous suit was fictitious. The court agreed the Bill of Costs should ordinarily have been filed in the main file but found nothing unlawful in opening a miscellaneous file for that purpose. It held that the Respondent, having failed to raise these objections before the taxing officer or by way of a reference, was estopped from raising them at the judgment stage, and declined to consider whether costs could be taxed absent a costs order since no reference was pending. The application was allowed in its entirety.

Key legal issues

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01

Whether judgment may be entered on a Certificate of Taxation where the Bill of Costs was filed in a miscellaneous file rather than the main suit file

Holding

Yes - the filing of the Bill of Costs in a separate miscellaneous file was not shown to be unlawful, and the Respondent, having failed to object before the taxing officer or by reference, was estopped from raising the objection at the judgment stage.

Reasoning

The court accepted that the Bill of Costs would ordinarily have been filed in the main file, HCCC No. 105 of 2001. However, it found nothing unlawful in opening a miscellaneous file for that purpose, noting the taxing officer would have required the main file when taxing. The Respondent never raised the procedural objection before the taxing officer or on a reference, and the taxation was never challenged. The court therefore held the Respondent estopped and allowed judgment on the Certificate of Taxation.

p. 2
02

Whether the taxing officer could tax costs where the striking-out Ruling of 19th May 2008 made no order as to costs

Holding

The court declined to determine this issue because no reference was before it; the objection was raised too late and the matter was unchallenged.

Reasoning

The Respondent argued that the Ruling of Ombija J striking out the suit awarded no costs to any party, so there was no basis for the Party and Party Bill of Costs. The court held that this position applied equally to the estoppel analysis, and since no reference challenging the taxation was before it, it would not delve into whether the taxing officer could tax costs absent an order of costs, describing the issue as 'water under the bridge'.

p. 2

Legal principles established

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  • A party is not precluded from opening a miscellaneous file in which to file a Party and Party Bill of Costs, and an objection to such procedure must be raised before the taxing officer or by way of a reference.
  • A party who fails to challenge a taxation by way of a reference, or raise procedural objections before the taxing officer, is estopped from raising those objections at the stage of entry of judgment on the Certificate of Taxation.

Court orders

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  1. 1.Judgment entered in favour of the Applicant against the Respondent in terms of the Certificate of Taxation given on 22/2/12 in the sum of Kshs.557,920/- together with interest thereon at court rates from 22/2/12 until payment in full
  2. 2.The Respondent to pay the costs of the Application

Authorities

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Legislation

  • Advocates ActOrder 51 Rule 2 (as cited in the judgment)
Jurisdiction invoked
Order 51 Rule 2 of the Advocates Act (as cited in the judgment), for entry of judgment on a Certificate of Taxation

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Malindi Holdings & Estate Agents Ltd v Commissioner of Lands & 5 others [2015] KEELC 199 (KLR)", Case Analysis (2015). Miscellaneous Civil Application No. 48 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/199/eng@2015-10-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.