Khator (Suing on Behalf of the Estate of the Late Rashid Khato Salim -Deceased) v Khalif & another (Environment & Land Case 107 of 2015) [2024] KEELC 737 (KLR)
The bottom line
#The Environment and Land Court in Malindi refused a second chance to challenge an advocate's taxed legal fees, because the same request had already been decided years earlier.
What this practically means
#Executive summary
#Key legal issues
#Whether extension of time to file objection to taxation should be granted
Refused; the applicant had already been granted 14 days by Olola J. and never complied, so the issue is res judicata and the fresh application is an abuse of process
Olola J. had on 8 October 2019 given the applicant 14 days to file objections to the bill of costs. The applicant never did until a notice to show cause was taken out. Under section 7 of the Civil Procedure Act and the authorities cited, the same issue cannot be relitigated merely with a cosmetic facelift; granting a further extension would create an absurdity and abuse of court process.
Whether a stay of the NTSC proceedings before the Deputy Registrar should be granted
Refused; the stay was consequential to the extension of time, which was declined, so no purpose would be served
The NTSC arose from the impugned bill of costs. Since the extension of time was refused, there would be nothing pending before the court for consideration. The court also found the applicant was not a deserving party for equitable discretion, citing Mutungi J. in the Kenya Railways case on the burden of explaining delay.
Legal principles established
#- Res judicata under section 7 of the Civil Procedure Act applies to applications and motions within a suit; a matter already decided cannot be relitigated
- Extension of time is an equitable remedy available only to a deserving party, who must lay a basis for the exercise of the court's discretion
- Repeated applications on the same issue constitute an abuse of court process; there must be an end to interlocutory applications as much as to litigation
Court orders
#- 1.The application dated October 26, 2022 is dismissed with costs
- Jurisdiction invoked
- Inherent discretion to enlarge time under rule 11 of the Advocates Remuneration Order and section 7 of the Civil Procedure Act (res judicata)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khator (Suing on Behalf of the Estate of the Late Rashid Khato Salim -Deceased) v Khalif & another (Environment & Land Case 107 of 2015) [2024] KEELC 737 (KLR)", Case Analysis (2024). Malindi ELC Miscellaneous Application (application dated October 26, 2022), arising from Malindi ELC Civil Suit No 107 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/737/eng@2024-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.