Ebrahim v County Government of Mombasa & 9 others (Environment and Land Miscellaneous.(Reference) Application E031 of 2023) [2024] KEELC 99 (KLR)
The bottom line
#A Mombasa court set aside a taxing master's rulings and ordered two bills of costs to be taxed afresh before a different taxing master, with no costs awarded.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was opposed
The application was unopposed as no replying affidavit was filed and counsel stated on record that respondents did not oppose; submissions cannot reverse that position
On 12th October 2023 counsel for respondents expressly stated they did not oppose the application for re-taxation. No replies in opposition were filed as required under Order 51 rule 14 of the Civil Procedure Rules. Counsel later sought in submissions to have the rulings upheld and the reference dismissed, but submissions are not among the processes recognised under Order 51 rule 14 for responding to an application, so the application remained unopposed.
Forum for re-taxation
Re-taxation of the two bills of costs should take place before a different taxing master, not before the judge; the interim orders of 12th October 2023 were reviewed accordingly
Both the setting aside and the re-taxation having been conceded, the court found the decisions in Kabogo Gitau and Ilongo Tokole Jean would guide the fresh taxation. It concluded that re-taxation should be before another taxing master rather than before the court itself, and reviewed its orders of 12th October 2023 accordingly.
Costs of the application
Since the application was conceded, each party to bear their own costs
The court considered it fair and just, given the application was conceded, that no party should bear the other's costs of the application. This was reflected in the final orders.
Legal principles established
#- A party cannot withdraw an opposition or concession through submissions; submissions are not a recognised process for responding to an application under Order 51 rule 14
- A court interferes with a taxing master's decision only where there is an error in principle, not on questions solely of quantum
Court orders
#- 1.The taxing master's ruling of 2nd November 2022 on the respondents' bills of costs dated 10th February 2022 and 11th August 2022 is set aside
- 2.The two bills of costs to be taxed afresh before a different taxing master
- 3.Each party to bear their own costs in the application
- Jurisdiction invoked
- Section 1A and 3A of the Civil Procedure Act and rule 11(2) of the Advocates Remuneration Order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ebrahim v County Government of Mombasa & 9 others (Environment and Land Miscellaneous.(Reference) Application E031 of 2023) [2024] KEELC 99 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/99/eng@2024-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.