Automated Summary
Key Facts
The Applicant, Dickson Kipleting Maru, challenged the assessment of party and party costs (Kshs 283,520) awarded by the Magistrate's Court in Iten SPMCC No. 10 of 2019. The Respondent, Vincent Kibiwott Ruto, argued the Applicant's Advocates failed to attend the trial Court's assessment process in February 2023, allowing the Magistrate to tax the Bill ex parte. The High Court ruled the Applicant must first exhaust remedies at the Magistrate's Court to address the non-attendance before seeking review in the High Court, leading to the Application being struck out.
Issues
- The court considered whether it could exercise jurisdiction to review a Magistrate's Court cost assessment, citing precedents like Mathiu Elijah Solo v Joseph Murira [2009] eKLR and Richard Otieno Oloo v Anastacia Anditi Oloo [2019] eKLR. The judge affirmed jurisdiction via inherent powers or Section 27 of the Civil Procedure Act.
- The Respondent alleged the Applicant's advocates did not attend the Magistrate's Court to oppose the cost assessment, leaving the matter unchallenged. The court concluded this procedural lapse rendered the application premature, as remedies should first be exhausted in the subordinate court.
Holdings
- The court declined to determine the matter on merits, holding that the Applicant's Advocates failed to attend the trial Magistrate's Court during the assessment of costs and did not seek to address this issue before the High Court. The court emphasized that the Applicant must first exhaust remedies at the Magistrate's Court before seeking review in the High Court.
- The court ordered the Notice of Motion dated 14/4/2023 to be struck out with costs awarded to the Respondent. This decision followed the Respondent's unchallenged allegation that the Applicant's Advocates did not attend the cost assessment hearing in the trial court.
Remedies
The application was struck out with costs to the Respondent due to the Applicant's failure to attend the trial court's assessment of costs, leading the court to dismiss the application as unprocedural and premature.
Monetary Damages
500000.00
Legal Principles
The court applied Section 27 of the Civil Procedure Act and its inherent supervisory powers to review cost assessments by subordinate courts. It emphasized that challenges to cost assessments must first be addressed in the lower court before seeking review in the High Court, citing the need to exhaust available remedies.
Precedent Name
- Mathiu Elijah Solo v Joseph Murira
- Richard Otieno Oloo v Anastacia Anditi Oloo & another
Cited Statute
- Advocates Remuneration Order
- Civil Procedure Act
Judge Name
Wananda J. R. Anuro
Passage Text
- 4. The above is because a challenge against the 'assessment of costs' made by the subordinate Court does not fall under the provisions of Rule 11 of the Advocates Remuneration Order and thus should not also be described as a 'Reference' within the meaning ascribed therein. Instead, it is Section 27 of the Civil Procedure Act and/or the High Court's inherent or supervisory powers which can be invoked to cure any 'lacuna' in the process or procedure of challenging the 'assessment of costs' by the subordinate Courts.
- 12. I associate myself fully with the logic and reasoning of Kasango J to the effect that, despite the lacunae on the issue, this Court can very well invoke its inherent powers to check assessments of costs by the Magistrates Court. I therefore find that I have the necessary jurisdiction to entertain the present Application.
- 17. ...the Applicant's Advocates never bothered to seek leave to file a Supplementary Affidavit to respond to the allegations of failure to attend before the trial Magistrate during assessment of the party and party costs, nor did they even file Submissions before this Court to address the allegation. The allegation of their non-attendance before the trial Magistrate's Court therefore remains uncontroverted and unchallenged.