James O’makorit/A Lifewood Traders Auctioneers v Star Publications Ltd [2022] KEELRC 903 (KLR)
The bottom line
#A Kenyan court threw out an auctioneer's taxed costs because the taxing master never checked who actually owed the money before taxing the bill.
What this practically means
#Executive summary
#Key legal issues
#Whether the Taxing Master erred by restricting himself to taxing the Bill of costs and leaving other issues undetermined
Yes. The Taxing Master ignored the respondent's protest that the bill was premature and the question of who was liable to pay, and thus fell into error.
The Notice of Motion dated 14/1/2021 sought both taxation and a determination that the respondent pay the costs. The respondent raised preliminary issues - prematurity and irregular execution that had been nullified by ruling of 21/2/2017 - in a replying affidavit. The taxing master dealt only with taxation and never determined liability. The court held he was obliged to determine the correct party liable before entertaining the bill, especially where prematurity was protested.
Whether the taxed costs and certificate should be set aside
Yes. The ruling of 2/6/2021 and any certificate of costs made thereunder were set aside and the Notice of Motion referred to a different taxing master.
Having found the bill premature and entertained before establishing the correct respondent, the court concluded the taxing master ought not to have taxed the bill while leaving the other prayers and issues undetermined. The certificate could not stand and the application was remitted for fresh hearing before a taxing master other than Hon S.K. Ngetich, after satisfaction that the bill is brought against the correct party.
Legal principles established
#- A taxing master is obliged not only to tax a bill of costs but also to determine preliminary issues, including whether the bill is prematurely filed and whether the party cited is the proper party liable to pay the costs.
Court orders
#- 1.The ruling of the taxing master dated 2/6/2021 and any certificate of costs made thereunder is set aside
- 2.The Notice of Motion dated 14/1/2021 is referred for hearing by a Taxing Master of the court other than Hon S.K. Ngetich, after being satisfied that the Bill of costs is brought against the correct party
- 3.The auctioneer is condemned to pay costs of the reference to the applicant
- Jurisdiction invoked
- Reference against the decision of the Taxing Master (chambers summons pursuant to leave granted on 9/12/2021)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James O’makorit/A Lifewood Traders Auctioneers v Star Publications Ltd [2022] KEELRC 903 (KLR)", Case Analysis (2022). Chamber Summons dated 9/12/2021 (arising from Kericho ELRC No. 138 of 2012; John Wafula Simiyu v The Star Publications Limited). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/903/eng@2022-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.