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ELCPartially Allowed· [2024] KEELC 99 (KLR)

Ebrahim v County Government of Mombasa & 9 others (Environment and Land Miscellaneous.(Reference) Application E031 of 2023) [2024] KEELC 99 (KLR)

Environment and Land Court
24 January 2024
1,236 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The petitioner, Abdul Hamid Ebrahim, filed a chamber summons dated 31st July 2023 under sections 1A and 3A of the Civil Procedure Act and rule 11(2) of the Advocates Remuneration Order, seeking to set aside the taxing master's rulings of 2nd November 2022 on the 5th-10th respondents' primary and supplementary party and party bills of costs, and to have the bills taxed afresh. When the application came up on 12th October 2023, counsel for the respondents stated they did not oppose it, and the court granted the operative prayers and directed the filing of submissions. The court framed three issues: whether the application was opposed; whether re-taxation should occur before the court or another taxing master; and who should bear the costs. It held that the application was unopposed, since no replies were filed under Order 51 rule 14 and counsel's later attempt in submissions to uphold the rulings was ineffective - submissions are not a recognised means of responding to an application. On the forum for re-taxation, the court applied the principles in William Kabogo Gitau v Ferdinand Waititu and Ilongo Tokole Jean v Pallet Logistics Limited on interference with a taxing master's decision and the criteria for assessing instruction fees in constitutional petitions under Schedule 6 paragraph 1(j)(ii) of the Advocates Remuneration (Amendment) Order 2014. It directed that re-taxation take place before a different taxing master and reviewed its interim orders of 12th October 2023 accordingly. Because the application was conceded, each party was ordered to bear their own costs.

Key legal issues

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01

Whether the application was opposed

Holding

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

Reasoning

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.

p. 2
02

Forum for re-taxation

Holding

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

Reasoning

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.

p. 3
03

Costs of the application

Holding

Since the application was conceded, each party to bear their own costs

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.The two bills of costs to be taxed afresh before a different taxing master
  3. 3.Each party to bear their own costs in the application

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 3A
  • Civil Procedure RulesOrder 51 rule 14
  • Advocates Remuneration Orderrule 11(2)
  • Advocates Remuneration (Amendment) Order 2014Schedule 6 paragraph 1(j)(ii)

Cases cited (2)

  • William Kabogo Gitau v Ferdinand Ndung'u Waititu
    [2019] eKLR
  • Ilongo Tokole Jean v Pallet Logistics Limited & 2 others
    [2021] eKLR
Jurisdiction invoked
Section 1A and 3A of the Civil Procedure Act and rule 11(2) of the Advocates Remuneration Order

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, "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.