Kimani Kabogo v William Kabogo Gitau [2020] KEELC 2751 (KLR)
The bottom line
#The High Court in Thika dismissed Kimani Kabogo's preliminary objection, confirming that disputes about legal costs must first go to the taxing master, and that filing an appeal does not automatically pause proceedings.
What this practically means
#Executive summary
#Key legal issues
#Whether the objection that costs should be confined to the preliminary objection is a proper preliminary objection
It is not a pure point of law; it should be raised before the taxing master
The court held that whether costs should be confined requires ascertainment of facts best done by the taxing master, and the Plaintiff should come to the court only if dissatisfied with the taxing master's finding, consistent with the principle of filing matters at the lowest competent adjudicating body.
Whether alleged non-compliance with Order 11 and non-taking of pre-trial directions constitutes a preliminary objection
No; these call for ascertainment of facts and belong before the taxing master
Determining whether Order 11 was complied with would require perusal of the file, which is ascertainment of facts. Similarly, the state of pre-trial directions is a factual matter for the taxing master, not a pure point of law suitable for a preliminary objection.
Whether the filing of Civil Appeal No. 82 of 2019 stays taxation proceedings
No; lodging an appeal is not a stay and the Plaintiff never sought a stay
The court applied Order 42 Rule 6 of the Civil Procedure Rules, holding that no appeal operates as a stay except so far as the court appealed from may order. The Plaintiff sought no stay from the High Court or Court of Appeal, so taxation could proceed.
Legal principles established
#- A preliminary objection must raise a pure point of law and cannot be raised where facts have to be ascertained or judicial discretion exercised
- An appeal does not operate as an automatic stay of proceedings; stay must be expressly sought and ordered
- Matters capable of resolution by the taxing master should be raised there first, at the lowest competent adjudicating body
Court orders
#- 1.The Notice of Preliminary Objection dated 11th March 2019 is dismissed entirely
- 2.Costs of the preliminary objection to be in the cause
- Jurisdiction invoked
- Inherent jurisdiction of the High Court over taxation matters; the Deputy Registrar's jurisdiction under Regulation 10 of the Advocates Remuneration Order was in issue
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimani Kabogo v William Kabogo Gitau [2020] KEELC 2751 (KLR)", Case Analysis (2020). Not stated in the extract (Suit relating to LR. No. 12825/27, 12825/33 and 12825/34). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2751/eng@2020-05-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.