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JudgmentODIYA & ASSOCIATES ADVOCATES VS JOSEPHINE ATENGA3 min read

ODIYA & ASSOCIATES ADVOCATES VS JOSEPHINE ATENGA

High Court at Machakos High Court · · Hon.Lady Justice Noel Adagi

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

MISCELLANEOUS APPLICATION NO. E131 OF  2022

JANE NYABIAGE ODIYA

T/A ODIYA ASSOCIATES ADVOCATES.......................... APPLICANT/ADVOCATE

VERSUS

JOSEPHINE BONARERI ATENGA……………… ………….… RESPONDENT/CLIENT

RULING

  1. Before me is a Reference by way of a Chamber Summons application dated 21/2/2023 by the Applicant/Advocate seeking orders under Section 1 3a of the Civil Procedure Act, Section 51 (2) of the Advocates Act and Rule 7 of the Advocates Renumeration Order that:-
  2. Spent;
  3. this decision of the Taxing Officer as evidenced in the ruling delivered on 18/01/2023 with respect to items 1, 2, 3, 7, 20 and 24in the bill of costs dated 18/10/2022 be set aside and taxed afresh by this Honourable court;
  4. in the alternative, the Honourable Court be pleased to order that the Respondent’s bill of costs with respect to items 1, 2, 3, 7, 20, 24, 25 and 26 be taxed afresh by another Taxing Master;
  5. the honourable court set aside the holding of the Taxing Master to the effect that the Respondent had paid KES 90,200 (Kenya Shillings Ninety thousand two hundred) only without evidence on record to support the same and the figure was not controverted;
  6. the honourable court set aside the holding of the Taxing Master to the effect that the value of the subject matter was not stated;
  7. the costs of the application be provided.
  8. The application is based on the grounds that :-
  9. The Applicant filed an amended bill of costs dated 18/10/2022 together with the Supporting List of Documents of even date.
  10. The Respondent filed a reply and submissions to the amended bill of costs dated 5/12/2022.
  11. Pursuant to the leave of the court the Applicant filed a further affidavit supporting the amended bill of costs and responding to the Respondent’s Replying Affidavit filed on 28/12/2022 and submissions filed on the same date’.
  12. The Taxing Master did not consider the affidavits and the submissions filed by the Applicant.
  13. The petition subject of the bill of costs vide Form P & A clearly states that the Estate is worth Ksh.30,000,000 (Kenya Shillings Thirty Million).
  14. The Respondent only paid Ksh.40,200 (Kenya shillings Forty Thousand Two Hundred) only as per the Applicant’s submission and supported by evidence and not Ksh.90,200 (Kenya Shillings Ninety-Two Hundred only).
  15. The Applicant being dissatisfied with the ruling raised an objection to the Taxing Master’s ruling and filed the reference herein.
  16. Parties have filed written submissions to the application. The Applicant’s submissions are dated 23/10/2024 whereas the Respondent’s submissions are dated 5/7/2022.

Applicant’s submissions

  1. The Applicant submitted that the Reference for consideration by this

Honourable Court seeks to set aside the ruling delivered on 18th January 2023 by Honourable Deputy Registrar V. Ochanda. That the impugned ruling unjustly and erroneously reduced the Applicant's Bill of Costs from Ksh.812,945/- to Ksh.165,105/- a decision reached through a fundamental misapprehension of material facts, as clearly demonstrated in the pleadings, and a flawed application of legal principles.

  1. That the Applicant's Bill of Costs dated 18th October 2022, arises from Machakos High Court Succession Cause No. 52 of 2021, involving the Estate of Benafit Ogori Maeri Nyamasege (Deceased). The Applicant specifically challenges the assessment of items 1, 2, 3, 7, 20, and 24 of the Bill of Costs, which was contrary to the pleadings that were filed in court.
  2. That the reduction of the Bill of Costs was premised on a failure to properly consider the pleadings, disregard of key evidence, and the improper exercise of discretion by the Court. These errors constitute a breach of settled legal principles governing the taxation of costs, warranting this Honourable Court's intervention to rectify the injustice occasioned.< ></><> >></><>< >><>><>
  3. Failure to Properly Consider the value of the subject matter< > - </></><>>>>>< > > >><> >><> ><><>< >"( > >></><> > ></><>><><>></><>< > > > > ><><>> ><>< >"<><>></></><>>> ><>< ></><>"<><>></> <><>></></><>< >><>><><>></><> >><><>></><> >>> >>, ><><><>"></></><> >><><>></><>"<><> ></></></><> >><> > >><>>>><>><>><> </></>><> ></> <><>(> > ><><><>“> <>> <>> <>> <>></> <><>></> <><>></> <><>></></><>><>>> (><>><>> >> >&<> > <>[>, ><> </></></><><><>“></> <><>></> <><>></></><>><> >> ><><><>“></> <><>></> <><>></> <><>></><> </><><>></> <><>></> <><>></> <><>></></><>><>><>><>><><>></><>><>><>>>.<> ><>(> <>>, <>> ><><>><>><>><>><>></><>>>><><>"....> <>> <>> <>> <>> <>> <>> <>[></><>><>>> >>>>< >><>><>><>>> ><>><>><>><><><>“></></><>><>><>><>><>><>><>><> “> >>> ><>></><>.</> </><>><><>><> ><>></><>><>><>><>><> (><>(><>(><>(><>(><> (><>(><>>>.</><>><>><>><><>></><><> ></><>><><>></><>><>><>>
    ODIYA & ASSOCIATES ADVOCATES VS JOSEPHINE ATENGA ODIYA & ASSOCIATES ADVOCATES VS JOSEPHINE ATENGA