Malindi Holdings & Estate Agents Ltd v Commissioner of Lands & 5 others [2015] KEELC 199 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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.
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.
Whether the taxing officer could tax costs where the striking-out Ruling of 19th May 2008 made no order as to costs
The court declined to determine this issue because no reference was before it; the objection was raised too late and the matter was unchallenged.
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'.
Legal principles established
#- 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
#- 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.The Respondent to pay the costs of the Application
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.