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ELCDismissedNotice of Motion dated 9th October, 2020· [2021] KEELC 1807 (KLR)

Dickson Sinkeet Mapi v Naisenyu Pargarna Mutunkei [2021] KEELC 1807 (KLR)

High Court of Kenya
22 September 2021
COChristine Ochieng
1,484 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Machakos ruled that a pending appeal does not stop taxation of costs, because taxation only calculates how much is payable.

What this practically means

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Executive summary

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This is a ruling on the Plaintiff's Notice of Motion dated 9th October 2020, brought under Rules 13A and 16 of the Advocates (Remuneration) Order, Sections 1A and 3A of the Civil Procedure Act and Article 159 of the Constitution. The Applicant, whose suit against the Respondent was dismissed by judgment dated 27th May 2020 and who had lodged Civil Appeal No. E 41 of 2020 in the Court of Appeal with a pending stay of execution application, sought a stay of taxation of the Respondent's Party and Party Bill of Costs dated 21st August 2020, with costs in the cause. He argued that proceeding with taxation during the appeal would cause multiplicity of suits and render his stay application nugatory, relying on Commercial Bank of Africa v Rabadia, Moses Wachira v Niels Bruel and Homi Dara Adrinwalla. The Respondent opposed, contending that taxation is independent, determines only quantum, and that no substantial loss was shown, relying on Deposit Protection Fund v Rosaline Njeri and other authorities. Justice Christine Ochieng framed a single issue: whether stay of taxation proceedings should issue pending the Court of Appeal application. Applying Order 42 Rule 6(2) of the Civil Procedure Rules, the court adopted Deposit Protection Fund, holding that taxation cannot occasion substantial loss as it merely ascertains quantum, that the Applicant showed no prejudice and offered no security, and distinguishing the Applicant's authorities as concerning costs from interlocutory applications rather than post-judgment costs. The Court of Appeal had not stayed the judgment awarding costs. The application was found unmerited and dismissed with costs to the Respondent, delivered virtually at Machakos on 22nd September 2021.

Key legal issues

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01

Whether stay of taxation proceedings pending appeal should be granted

Holding

Stay of taxation refused because the Applicant did not demonstrate substantial loss, prejudice or offer security, and taxation is an independent process before the Taxing Officer

Reasoning

The court applied Order 42 Rule 6(2) CPR requirements and relied on Deposit Protection Fund v Rosaline Njeri Macharia, holding that taxation merely ascertains the quantum of costs and cannot occasion loss. The Applicant's cited authorities were distinguished because they involved costs from interlocutory applications, whereas here judgment had already been delivered. The Applicant could seek stay of execution after taxation, and the Court of Appeal had not stayed the judgment awarding costs.

p. 2

Legal principles established

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  • Taxation of a Bill of Costs cannot occasion substantial loss to the person against whom it is taxed; it merely ascertains the quantum of costs payable, and taxation proceedings are independent and the mandate of the Taxing Officer

Court orders

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  1. 1.The Notice of Motion dated 9th October, 2020 is unmerited and is disallowed
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Advocates (Remuneration) OrderRules 13A and 16
  • Civil Procedure ActSections 1A and 3A
  • Constitution of Kenya, 2010Article 159
  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (7)

  • Commercial Bank of Africa Vs Lalji Karsan Rabadia & 2 Others
    (2012) eKLR
  • Moses Wachira Vs Niels Bruel & 2 others
    (2016) eKLR
  • Homi Dara Adrinwalla V Jeane Hogan & Another
    (1966) EA
  • Deposit Protection Fund V Rosaline Njeri
    (2006) eKLR
  • Tom Ojienda & Associates V Mumias Sugar Company Limited & Another
    (2018) eKLR
  • Governors Ballon Safaris Ltd V Skyship Company Ltd & Another
    (2015) eKLR
  • Francis Muriuki Muraguri t/a Lusoi Stores & 2 Others V Milling Corporation of Kenya (2009) Limited
    (2018) eKLR
Jurisdiction invoked
Rules 13A and 16 of the Advocates (Remuneration) Order; Sections 1A and 3A of the Civil Procedure Act; Article 159 of the Constitution

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, "Dickson Sinkeet Mapi v Naisenyu Pargarna Mutunkei [2021] KEELC 1807 (KLR)", Case Analysis (2021). Notice of Motion dated 9th October, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1807/eng@2021-09-22

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