Michael Odoyo Nyakwaka v Boaz Owiti Okoth & 2 others [2013] KEMC 12 (KLR)
The bottom line
#A Kenyan court taxed costs after a withdrawn election petition, awarding the winning candidates and IEBC over Kshs.888,000 total, paid partly from the petitioner's deposit.
What this practically means
#Executive summary
#Key legal issues
#Assessment of the 1st Respondent's party and party bill
The court awarded Kshs.300,000 as instruction fee on item 1 and assessed subsequent items individually, taxing disbursements to scale except item 26(b) at Kshs.75, producing a net assessed cost of Kshs.524,963.80 with VAT
The court considered the bills against the Advocates Remuneration Order and perused the court record from 29/4/13 to 14/8/13. Although counsel urged taxation as drawn, the magistrate assessed each item, awarding attendance and travel allowances supported by the record and refusing items unsupported by the record.
Assessment of the joint bill of the 2nd and 3rd Respondents
The court awarded Kshs.250,000 on items 1 and 2 as both respondents were jointly represented, taxed service and attendance items individually, allowed Kshs.35,000 for travel on at least five court appearances, and assessed total costs of Kshs.363,747 inclusive of VAT
The court noted the respondents were represented jointly by one counsel and that although counsel participated in the trial, no witness was called for the 2nd and 3rd respondents, which informed the reduced instruction fee on items 1 and 2 relative to the 1st Respondent's bill.
Application of the petitioner's security deposit
The Kshs.100,000 deposited by the petitioner was ordered applied in the first instance towards settlement of the assessed costs
Following withdrawal of the petition and the ruling on costs, the court directed that the deposit be applied first towards the assessed costs of the respondents, effectively reducing the sum payable by the petitioner directly.
Legal principles established
#- Election petitions are weighty matters and the Advocates Remuneration Order provides for instruction fees of up to Shs.3 million in defending them
- A taxing officer should assess each item of a bill rather than tax as drawn where there is no reply from the opposing party
- A sum deposited in court may be applied towards settlement of assessed costs
Court orders
#- 1.Costs assessed for the 1st Respondent at Kshs.524,963.80 inclusive of 16% VAT
- 2.Costs assessed jointly for the 2nd and 3rd Respondents at Kshs.363,747 inclusive of 16% VAT
- 3.The petitioner's deposit of Kshs.100,000 to be applied in the first instance towards settlement of the assessed costs
- Jurisdiction invoked
- Costs jurisdiction in Election Petition No. 1 of 2013 following withdrawal of the petition; taxation under the Advocates Remuneration Order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Odoyo Nyakwaka v Boaz Owiti Okoth & 2 others [2013] KEMC 12 (KLR)", Case Analysis (2013). Election Petition Number 1 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/12/eng@2013-08-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.