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ELCAllowedNot stated in judgment (ELC Mombasa)· [2024] KEELC 7364 (KLR)

Hatimy alias Rukiya Nurein Hatimy & another v Hatimy & another (Environment & Land Case 45 of 2014) [2024] KEELC 7364 (KLR)

Environment and Land Court
6 November 2024
628 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court set aside a costs ruling because the taxing officer ignored a party's filed opposition, and ordered the bill re-taxed.

What this practically means

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Executive summary

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The defendants filed a chamber summons dated 27th April 2024 seeking to set aside the taxing master's ruling of 13th March 2024 on the plaintiffs' party and party bill of costs dated 21st June 2023, taxed at Kshs.300,691.67, and to have the bill re-taxed. They contended, through the affidavit of Mohideen Abdulrahman Mohamed Hatimy, that the taxing master erred in holding the bill unopposed when they had filed submissions in opposition, and that this offended their right to be heard under Article 50(1) of the Constitution. The plaintiffs opposed via grounds of opposition dated 22nd May 2024, arguing the application was misconceived and that the alleged non-consideration of submissions was not a ground for setting aside the decision. Both parties filed submissions. The court verified that the defendants' submissions dated 14th December 2023 were on the record, filed via e-filing at 18:04:35, and held that the taxing master misdirected himself in treating the bill as unopposed and taxing it without considering the defendants' input. To accord the defendants a hearing, the court set aside the ruling of 13th March 2024 and remitted the bill of costs for re-taxation. Invoking section 27 of the Civil Procedure Act, the court ordered each party to bear its own costs of the application. Judgment delivered virtually on 6th November 2024 by S. M. Kibunja J, ELC Mombasa.

Key legal issues

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01

Whether the taxing master erred in treating the bill as unopposed

Holding

Yes - the defendants' submissions dated 14th December 2023 were on record via e-filing, so the bill was opposed and the taxing master misdirected himself.

Reasoning

The court noted the taxing master's ruling recorded the bill as not opposed, yet the defendants exhibited submissions dated 14th December 2023 filed through e-filing at 18:04:35. Holding the bill unopposed and taxing it without considering the defendants' input denied them a hearing contrary to Article 50(1). Setting aside and remitting for re-taxation was the fair and just remedy.

p. 2
02

Appropriate remedy for the taxing master's misdirection

Holding

The ruling of 13th March 2024 was set aside and the bill of costs remitted for re-taxation, with each party bearing own costs.

Reasoning

To accord the defendants an opportunity to be heard, the court found it fair and just to set aside the ruling and remit the bill of costs dated 21st June 2023 to the taxing master for re-taxation. Applying section 27 of the Civil Procedure Act, the court ordered each party to bear its own costs, finding this just in the circumstances.

p. 2

Legal principles established

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  • A litigant who has filed submissions on a bill of costs has a right to be heard, and a taxing master errs in treating the bill as unopposed and taxing it without considering those submissions.

Court orders

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  1. 1.The taxing officer's ruling of 13th March 2024 on the party and party bill of costs dated 21st June 2023 is set aside
  2. 2.The Party and Party bill of costs filed by the plaintiffs dated 21st June 2023 is remitted back to the taxing officer for re-taxing
  3. 3.Each party to bear their own costs in the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1)
  • Civil Procedure ActSection 27 (Chapter 21, Laws of Kenya)
Jurisdiction invoked
Inherent jurisdiction to review/set aside a taxing master's ruling; Article 50(1) of the Constitution invoked (right to be heard)

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, "Hatimy alias Rukiya Nurein Hatimy & another v Hatimy & another (Environment & Land Case 45 of 2014) [2024] KEELC 7364 (KLR)", Case Analysis (2024). Not stated in judgment (ELC Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7364/eng@2024-11-06

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