Cleophas Malalah v Kakamega County Government & 2 others [2020] eKLR Case Summary

Court
Environment and Land Court at Kakamega
Category
Civil
Judge(s)
N.A. Matheka
Judgment Date
October 26, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: Cleophas Malalah v Kakamega County Government & 2 others [2020] eKLR


1. Case Information:
- Name of the Case: Cleophas Malalah v. Kakamega County Government, Ajabu East Africa, Isindu Shihundahundi
- Case Number: ELC CASE NO. 237 OF 2016
- Court: Environment and Land Court at Kakamega
- Date Delivered: 26th October 2020
- Category of Law: Civil
- Judge(s): N.A. Matheka
- Country: Kenya

2. Questions Presented:
The court was tasked with resolving several legal issues, including:
1. Whether to grant the application for a stay of execution against the decree issued on 16th February 2019, pending the determination of a challenge to the taxed bill of costs.
2. Whether the applicant should be permitted to file a reference out of time concerning the taxed bill of costs.
3. Whether the taxing master's decision regarding the bill of costs was valid and should be upheld.

3. Facts of the Case:
The applicant, Cleophas Malalah, initiated legal proceedings in November 2016 against the Kakamega County Government, Ajabu East Africa, and Isindu Shihundahundi, represented by M/s. Z.J. Atulo & Company Advocates. It was revealed during the proceedings that the same advocate was also representing the second and third respondents, creating a conflict of interest. The case was withdrawn on 16th February 2017, resulting in costs being awarded to the defendants. Following this, the taxing master assessed the bill of costs dated 20th April 2017, prompting Malalah to file an objection/reference on 23rd April 2018, which went unanswered by the taxing master.

4. Procedural History:
On 17th February 2020, the applicant filed an application seeking an urgent hearing and a stay of execution concerning the taxing master’s bill of costs. The applicant contended that the taxing master had failed to provide reasons for the taxation and that the bill was defective. The respondents raised a preliminary objection regarding the representation of the applicant's advocates, which the court dismissed. The court subsequently reviewed the merits of the application and found flaws in the taxing master’s decision.

5. Analysis:
- Rules: The court considered the Advocates (Remuneration) Order and the Civil Procedure Rules, particularly Rule 11 concerning objections to a taxing officer's decision and Order 9 relating to changes of advocates.
- Case Law: The court cited several precedents, including *First American Bank of Kenya v. Shah and Others* (2002) EA 64 and *Joreth Ltd v. Kigano & Associates* (2002) 1 EA 92, which established that a taxing officer's discretion can only be interfered with on grounds of an error of principle or excessive fees. Additionally, *Republic v. Minister for Agriculture & 2 Others ex parte Samuel Muchiri W’njuguna* (2006) eKLR was referenced, emphasizing that taxation involves judicial discretion rather than merely a mathematical exercise.
- Application: The court determined that the taxing master had not provided reasons for the taxation, constituting a significant error of principle. The decision to tax two separate bills for the same representation was found to be duplicative and unjust. Consequently, the court ruled to set aside the taxing master’s decision and remitted the bill of costs for re-evaluation.

6. Conclusion:
The court granted the application, setting aside the taxing master’s decision and remitting the bill of costs for reassessment. This ruling highlighted the necessity for transparency and fairness in the taxation process, mandating that taxing officers provide adequate justification for their decisions.

7. Dissent:
There were no dissenting opinions noted in the ruling.

8. Summary:
The ruling in *Cleophas Malalah v. Kakamega County Government* underscores the judicial scrutiny applied to the taxation of costs and the procedural requirements that taxing officers must adhere to. The decision reinforces the principle that parties must receive clear reasons for taxation decisions to ensure fairness in the legal process. This case is significant as it emphasizes the importance of proper representation and the potential conflicts arising from dual representation by the same advocate.

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