Nakhayo v Council, University of Kabianga & another (Petition E006 of 2020) [2023] KEELRC 2734 (KLR)
The bottom line
#A Kenyan court ruled that a taxing officer cannot tax costs that were never awarded by the court, voiding the taxation entirely.
What this practically means
#Executive summary
#Key legal issues
#Extension of time for filing the Reference
Time extended where the explanation for delay was unchallenged
The Respondents explained the delay by the Vice-Chancellor being out of office and unable to swear the supporting affidavit. The Petitioner did not challenge that explanation, so the Court exercised its discretion to extend time up to the date of filing the application, despite the Petitioner's argument that extension is discretionary and that there was inordinate delay.
Irregularity of the Reference for want of a prior Objection under paragraph 11(1)
The Reference was irregular, but the Court entertained it because the underlying taxation lacked any legal foundation
The Respondents never filed the Objection contemplated by paragraph 11(1) of the Advocates Remuneration Order, rendering the Reference procedurally irregular. Nevertheless, since the judgment of 17 February 2021 directed each party to bear own costs, the taxation of party-and-party costs up to judgment had no factual or legal basis, a defect the Court treated as jurisdictional and fatal to the taxation itself.
Validity of the taxation of costs not awarded
The taxation was void ab initio and was set aside
The judgment of 17 February 2021 ordered each party to bear own costs of the Petition; only costs of an application for stay of execution (awarded 2 December 2021) were granted. The Taxing Officer therefore erred in fact and in law, and exceeded jurisdiction, by taxing items relating to the Petition where no costs had been awarded. Such taxation was void from the outset and had to be set aside, leaving liberty to tax only the costs actually awarded.
Legal principles established
#- A taxing officer has no jurisdiction to tax costs that were never awarded by the court
- A taxation conducted without any award of costs is void ab initio and must be set aside
Court orders
#- 1.Extension of time for filing the Reference up to the date of filing the application
- 2.The taxation of 2 August 2023 is set aside
- 3.The Petitioner has liberty to tax the bill in respect of the costs awarded on 2 December 2021
- 4.Each party to bear its own costs
- Jurisdiction invoked
- Reference against a taxing officer's decision under the Advocates Remuneration Order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nakhayo v Council, University of Kabianga & another (Petition E006 of 2020) [2023] KEELRC 2734 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2734/eng@2023-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.