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B R N 15 CIVIL LITIGATION 1 — Transcript

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0:02you covered this before. I just wanted
0:04to
0:06um I just wanted to get an explanation
0:10on what consent judgments are and the
0:13procedures for obtaining them and when
0:14they are used.
0:16>> What
0:18>> consent judgments?
0:20>> Okay. Consent judgments.
0:23Okay.
0:24So
0:28uh that is uh that is sila. So let's go
0:32to and then I can answer all of them at
0:34the same time.
0:37>> Thanks J on judicial review. I know we
0:41mentioned the two
0:43petition or the other one
0:51motion
0:52one of
0:54I'm losing you.
1:00>> It is intermittent. Can can you maybe
1:02speak speak again?
1:05>> Sure. I wanted to ask what is the place
1:07of origating notice of motion in
1:10judicial review?
1:14>> Not really. It doesn't uh it doesn't
1:16originate anything.
1:19Um you would not file a notice of
1:22motion. Yes. people have said that you
1:23could file an an application under
1:25section under the relevant sections of
1:28the FAA. Uh but it is neither here nor
1:31there. Okay. Uh you might find that
1:34people doing that in practice but that
1:36is not the procedure as provided for and
1:37order 53 and article 22 and 23 of the
1:41constitution. So I would not advise
1:42somebody
1:44uh to normally an originating notice of
1:47motion is a miscellaneous application.
1:49Okay. uh when somebody calls a notice of
1:52motion an originating notice of motion,
1:54what they simply mean is that this is
1:57the time you're going to quote for the
1:58very first time with with
2:01uh a notice of motion and this happens
2:03in the miscellaneous in the
2:05miscellaneous applications because
2:06remember that in the miscellaneous
2:07application there is no suit that has
2:09been filed there is no suit that has
2:11been filed and therefore you're the one
2:12going to court for the very first time
2:14and that becomes an originating
2:16application. But generally when it comes
2:17to judicial review, I would not advise
2:20uh anyone to do a notice of motion just
2:22like that unless you've been told to
2:24prepare the substantive uh the
2:26substantive proceeding. If you've been
2:28told to prepare the substantive
2:31uh stage, then that is you know that is
2:33where we have we have the notice of
2:35motion. Are we together?
2:40>> Yes, we are under the Okay. Is the
2:43format the same as the one we use for
2:45notice of motion or it's different
2:47originating notice of a format for what
2:51a notice of motion is not of motion.
2:54>> Oh,
2:55>> there are no types of notice of motion
2:56and I've said don't draft anything
2:58called originating notice of motion.
2:59There's nothing like that. Those are uh
3:02things that you are can be safe to do in
3:04practice but there's nothing like
3:06originating notice of motion. Just talk
3:08about a notice of motion in the relevant
3:10in the relevant stages that we've had.
3:12If it is a notice uh if it is an
3:14application for injunction maybe uh that
3:16is a notice of motion. If it is an
3:17application for maybe a substantive
3:19judicial review that is a notice of
3:21motion. So just call it a notice of
3:22motion and don't call it as an
3:24originating notice of motion. In
3:26practice you might be able to get away
3:27with some of the things but in KSL you
3:30want to be very very specific and you
3:32don't want to uh rely or say something
3:35or do something that might come biting
3:37your marks later in the day. Are we
3:40together? But a notice of motion is a
3:41notice of motion. There's no types of
3:43notice of motions.
3:49>> Thank you.
3:50>> All right. So, uh back to Sila's
3:52question. So, we talk about the types of
3:54we have we have various types of
3:56judgment. Okay. When you look at the
3:57civil procedure rules, if you look at
3:59the civil procedure rules, there are
4:01various types of judgment that we are
4:03talking about. The first one is of
4:05course under order 10 where we have the
4:07default judgment. Default judgment comes
4:09in the instance where somebody has
4:10failed the defendant not even somebody
4:12the defendant has failed to enter uh to
4:15enter appearance and therefore we go for
4:16a default judgment and that is under
4:18order that is under order 10.
4:21Okay. The next judgment that we have is
4:24judgment under order 13 and that is
4:26judgment by admission. Okay. Judgment by
4:29admission. It means in any proceedings
4:31in any proceedings if you sue me for 10
4:34million okay if you sue me for 10
4:36million uh in a magistrate court or in
4:39any civil proceedings and then I prepare
4:41my defense and then I admit by saying I
4:45owe 5 million then the court will enter
4:47judgment on admission. So the court will
4:50enter judgment for that 5 million and
4:52then we shall proceed and hear this you
4:55see this uh remaining 5 million. So the
4:59court will anything you admit the court
5:01will enter judgment on admission. It
5:03means you've admitted part of the claim.
5:06So judgment will be entered for that
5:07specific part alone and then we shall
5:10proceed and we shall proceed and um hear
5:14uh we shall proceed and hear the rest of
5:16the the rest of the matter. So how do
5:18you go about that? You make an
5:19application and you ask the court to
5:20enter judgment for that specific part of
5:23the claim that has been admitted by the
5:26defendant. Are we together? That is
5:27judgment by admission. Then the next
5:29type of judgment that we have uh is
5:32under 36 that is summary judgment which
5:34we have talked about over and over and
5:36over again. That is summary judgment. We
5:39all understand what summary judgments
5:40are. Okay. After summary judgment of
5:42course we know this judgment under order
5:4421. That is after the court has deter
5:46has had and determined the matter the
5:48court shall render the full judgment
5:50under order 21. And then of course we
5:52have uh so remember that under order 10
5:55we also have what we call the
5:56interloctoral judgment. We have the
5:58interal judgment that is judgment
6:00pending the formal proof judgment
6:02pending the formal the formal proof. I
6:05hope that is clear. And then of course
6:07after that uh we have now the judgment
6:10uh the constant judgment or judgment
6:11upon consent. What that that means is
6:14that if you sue me for 10 million, okay,
6:17if you sue me for 10 million shillings,
6:19then
6:21you and I can have an argument. We can
6:23talk and negotiate and say, "By the way,
6:25there's no need of us going to court.
6:27You want 10 million, let me give you
6:28six, okay? So that this matter doesn't
6:31drag in court." So we will record a
6:33consent and then that consent will be
6:36adopted as the judgment of the court. So
6:38that is judgment upon consent or an
6:41order upon consent. So parties can write
6:44a consent or can file a consent where
6:47they agree to dispose of that matter. So
6:49when you record a consent, that consent
6:52is what will be the court's judgment.
6:53Whatever you've agreed on, so long as it
6:55is signed and filed, then that will
6:58become the judgment of the court. That
7:00is judgment upon consent. So anytime
7:02parties have agreed, then they have to
7:03file a consent.
7:06Sila.
7:07>> Yes. Yes. Thank you.
7:10>> All right. Uh Diana,
7:13I've seen your hand.
7:16>> Yes. So, I wanted to ask a question on
7:19consent judgment.
7:21So, uh since a party cannot appeal a
7:24decision arising from a consent
7:26judgment, is it possible to review it?
7:31>> No, this is a consent. It means you guys
7:33sat down and agreed. Why are you not why
7:36do you want to review it? So you can
7:37only review it if there is if there is
7:41again remember it is the same thing the
7:43same thing generally you will not review
7:45this judgment you will not appeal this
7:47judgment because it is coming from a
7:49consent that you guys recorded. So
7:50unless in the consent you guys had
7:53agreed that you wanted 10 million but
7:55the court while typing out the order the
7:58court misplaced or added another zero or
8:01removed another zero. You can review it
8:02based on an error apparent on the face
8:06of the record. Okay, an error apparent
8:08on the face of of the record. Or
8:10sometimes you're saying maybe the person
8:12you entered consent with was not the
8:14actual party to the suit and you just
8:16realized that he was an imposer. So
8:19again, substantively you will not review
8:21it or substantively you not appeal it.
8:24Why? Because you guys have agreed. This
8:26is something that is coming from a it is
8:27a consent. It it means you have agreed
8:30and you have agreed and both of you have
8:32together filed a consent. So that
8:34consent is what will be adopted as the
8:36order of the court.
8:38So generally you are not allowed to
8:40repeat I mean to review it unless
8:41there's an error or there's really some
8:44substantial evidence that has come up.
8:47Okay.
8:50>> Okay. Thank you very much.
8:54>> All right. And then the last person we
8:57have
8:59uh is um let's see. Yes. Uh
9:05minor Susan D. You want to sit up Susan?
9:11>> Okay. I wanted to ask
9:14>> or it's a method of exeution after you
9:18have got a judgment against a company.
9:22Now then that company has a sole
9:25director.
9:27>> Mhm.
9:29>> So that company changes it after
9:32judgment has been entered it changes its
9:33location and then transfers the assets
9:36that are known to it that was cars to
9:39the school director.
9:42>> Come on. Come again. Come again.
9:46>> Judgement was entered against a company.
9:48You are representing the plaintiff.
9:50Judgement against the defendant is a
9:52company
9:58and it's supposed to face some amount 10
10:01million transfers
10:04some assets from itself the sole
10:06director who is also the sole
10:08shareholder.
10:09>> Mhm.
10:11>> And it's it has also changed its place
10:13of business.
10:15Mhm.
10:16>> And then asking
10:18what are you going to do for your client
10:23to obtain the fruit of the judgment?
10:25Then some people are saying I wanted to
10:27see it's possible. Oh, should I not say
10:29what we are discussing? I wanted to
10:31inquire about something.
10:32>> No, it's okay. Proceed. Some people are
10:34saying what?
10:35>> Okay. people are saying I didn't
10:36actually believe it but I didn't think
10:38it was civil related because while you
10:41explaining a question on I read a
10:43certain in an exam and you said that uh
10:47if because it's civil you don't go into
10:49maybe conveyancing issues you just go
10:51maybe I remember a question we read and
10:53we you said we should focus on maybe was
10:55it an injunction or something and not
10:56about land matters so this question the
10:58person the people who are in the group
11:00were saying that we go to court and uh
11:02file an application um saying that we
11:05should lift the corporate veil and then
11:08we should lift the corporate veil and
11:10then go directly to the directors
11:12because we have hired a personal
11:14investigator and he has inquire into the
11:16uh assets of the company and he has
11:18found those cars were the only assets
11:20and he could identify.
11:22So is that a viable option applying to
11:26lift the corporate bill and then going
11:28directly to that
11:30uh director or
11:33>> that is that is a 2022
11:36question right
11:37>> 24 question
11:42yes
11:42>> now that question is civil whatever
11:44you're saying is civil remember that
11:46when you have a director when you're
11:47dealing with a company there are civil
11:49proceedings when dealing with a company
11:51you can sue s a company and you can also
11:53sue a director. Okay. So in that
11:55instance and what that question was
11:56testing because remember the question
11:58asked you to prepare the necessary
12:00application and that application is
12:02application for lifting the corporate
12:03veil. You have to lift the corporate
12:04veil so that the director can be held
12:07personally accountable and the reason
12:09for that is because there's fraud. You
12:11can see it from uh you can see fraud
12:13clearly on that question. They have
12:15transferred the funds or the money from
12:17the company to themsel and also they
12:19have changed the address of the
12:20business. And why are they doing that?
12:22They are doing that so that they can
12:24defeat the process of execution. So yes,
12:27so that instance you have to you have to
12:29lift the corporate V because remember
12:31the rule is very simple. You cannot sue
12:33a director. Okay, you cannot sue a
12:35director. And in the instance where
12:37you're suing a company and it is very
12:39clear that the company through the
12:40directors are trying uh to avoid the
12:44decree then of course you go and uh you
12:46go and um sorry you go and lift the
12:50corporate veil. Okay.
12:54>> Okay. I have another question.
12:58>> Proceed.
13:00>> Oh. So there was another question in
13:02that April 24 question that I really
13:04didn't understand. So there was um there
13:08is a certain scenario. So people weren't
13:10agreeing on summary judgments. Summary
13:13judgments where they where there is a
13:15sham the defense the defense doesn't
13:17have really a cause of action because
13:19they are saying they aren't paying us
13:20because we in our company we are
13:22fighting amongst ourselves because that
13:24is isn't is not a viable defense. Now
13:27are we supposed to because one of the
13:29issues they had admitted. So there was a
13:31judgment on admission but then the
13:33question asked for two applications. So
13:35one application was judgment on
13:36admission because in another in a
13:38writing maybe which was an internal
13:40document within that company they had
13:42admitted. So we had application one
13:44judgment on admission. Then there was
13:47this issue of asham defense but people
13:49are going strictly according to order 36
13:51says that um
13:54you must not you you should enter
13:57appearance but not have file defense.
13:59But then if you look at at the books
14:01maybe this your booka books it has case
14:04laws that say that if there's a sham
14:06defense you can apply for summary
14:09judgement. I follow up on that if you
14:11will allow me to continue.
14:13>> What is the question before you follow
14:15up on the question?
14:16>> The question is there's a sham defense
14:18do we because the order 36 is saying
14:21that you have entered the person has
14:23entered appearance but has not filed
14:25defense you go for summary judgement.
14:27Now this case they have filed a defense
14:29which is a term defense. Are we supposed
14:31to apply for summary judgement or not?
14:37>> But there's a defense. So you first deal
14:39with the defense. How do you deal with
14:40the defense if the defense is not
14:41raising a reasonable order to 15? When
14:44the defense is not raising any trouble
14:46issue in law, what do you do with the
14:48defense?
14:49>> You strike it out. You apply you apply
14:52for
14:53>> Yes. You first strike out the defense
14:54and then the second prayer. The first
14:56prayer is to strike out the defense. The
14:57second prayer will be uh to
15:00uh issue the summary judgement. So you
15:02first have to deal with the judge with a
15:04with a summary judgement sorry the
15:06defense which is striking out and then
15:08you can now deal with the summary
15:10judgement. All of that must come within
15:12the same application.
15:15>> A follow up on that on the issue of
15:16striking out. Now you are referring to
15:18another case you're saying that. So the
15:21>> you have a lot of cases
15:24ask me direct ask me direct questions.
15:26You keep saying we were they were they
15:29were
15:29>> Uhhuh.
15:31>> You said we we we make an application
15:34for striking out. No, this case was
15:36saying if you order if the application
15:39is allowed if the defense is struck out
15:44then you cannot you do not go the
15:45direction of summary judgement because
15:47now you don't have a defense. The
15:48defense is already struck out. You go
15:50with the if they end in the default in
15:53the default direction.
15:56>> But they they entered they entered
15:57appearance. Why you defaulting?
16:01>> Is there an appearance?
16:03>> Yeah. If the defense I would assume
16:06there was an appearance. It doesn't say
16:08but we assume we assumed there was an
16:10appearance. He didn't say
16:11>> you only go for summary judgement if
16:13there's no if there's no uh there's
16:14appearance but there's no defense. But
16:17if there's this there this defense and
16:19they end of appearance of course then
16:20that means if they didn't end appearance
16:22we go for default judgment.
16:30>> Okay.
16:33All right.
16:37Okay. I don't know whether I've answered
16:38your question. So anytime there's a
16:40defense you deal with a defense. Okay.
16:44Anytime there's a defense, you deal with
16:46a defense.
16:53Okay.
17:01Any other question?
17:19All right. So, I want us to go and uh uh
17:22talk about um
17:25I want us to go and talk about uh
17:28today's class. Uh we do remember that in
17:30the last class we had a discussion on
17:32judicial review. I was expecting a few
17:35questions on judicial review but looks
17:36like nobody's having a question on uh
17:39judicial review. Uh we drafted judicial
17:42review and we say that anytime you're
17:44dealing with judicial review you need to
17:46know the history of judicial review and
17:48how to approach the court for judicial
17:49review. Now questions on judicial review
17:52can be set in in three ways. The first
17:54one of course you can draft a petition
17:56for that. You can draft an application
17:58for that as well as you can just advise
18:01you can advise a party uh you can advise
18:04um your client on what judicial review
18:06is and how they need to go about uh the
18:10remedy of judicial review. Okay. Now I'm
18:14giving you guys one second to ask a
18:16question judicial review if there's a
18:18person in judicial review and also I do
18:20hope that um this answers uh the issue
18:24to do with execution against the
18:27government because that was judicial
18:28review as well. So execution against the
18:31government subject to section 21 of the
18:33government proceedings act you come
18:35through judicial review. Okay,
18:39that is what you're saying. You come
18:40through judicial judicial review.
18:45All right. So if there's no question on
18:48JR, uh this is the sample we did in the
18:51last class and I explained very well.
18:52Let us go and talk about cost. Let us
18:56talk about cost. And uh when it comes to
18:58cost, I want us to look at a few things
19:02cost related. Uh I want us to look at a
19:04few things in terms of cost. Cost is
19:07very easy. Um cost is very very easy and
19:13I want you to understand cost uh very
19:16well. Okay. I want you to understand
19:18cost uh very very well.
19:21And when it comes to the question of uh
19:24the cost
19:26um let me stop presenting the J.
19:30Let me stop presenting the J. So you
19:33since we started the class you've seen
19:36every single time we are saying uh that
19:39uh cost of the application cost of the
19:42suit cost of the appeal. So you might be
19:44wondering what this cost is what cost is
19:47uh you might be wondering what is this
19:48thing we're calling cost all the time.
19:51Okay. Now cost is expense. Okay. Cost is
19:56expense. Now I want us to know what cost
19:59is. That is number one. I want us to
20:01look at the types of costs. Okay. I want
20:04us to know the principles of cost.
20:07Okay. And then I want us to also
20:09understand the procedure of taxation of
20:13cost and also really the factors the
20:16court will consider in the taxation of
20:18cost especially uh the instructions fee.
20:21Okay. Also we might also look at how to
20:24prepare a fee note and also how to
20:27prepare the bill of cost.
20:30So I'm trying to bring up my screen and
20:33uh specifically the questions to do with
20:36um
20:38the advocates remuneration order
20:42uh the advocates remoration order and
20:44that is under the advocates act.
20:47So just a few seconds.
20:50The advocates remarration order
20:59notice number 64.
21:06All right, there we go.
21:09So the advocates remaration order is the
21:11order that regulates the payment of uh
21:13the payment of advocates. Advocates must
21:16always be paid. An advocate must always
21:19be paid for their uh for their duties or
21:22for whatever they have done services
21:24that they have rendered. They must be
21:25paid unless they have rendered them uh
21:28proono. Unless the same has been
21:30rendered proono. So bringing up my
21:33screen quickly there.
21:37All right. I think that is okay.
21:40Let's remove this one.
21:43Don't save.
21:48Okay. So, we go to rule 11.
21:52Uh, rule 11.
22:00Uhhuh. So, my screen should be up now.
22:05Uh, my screen should be up now.
22:08And I hope wherever you are, you can see
22:11my screen. Now that is fine that is
22:16okay. Now I want us to talk about the
22:18types of cost. Now there I've said costs
22:21are expenses that you incur in
22:25litigating. What am I saying? I'm saying
22:28that costs when you prepare an
22:30application and your last prayer is cost
22:34to be awarded or costs costs then you
22:38need to understand that a cost is the
22:40expense of the expense of the suit.
22:44It means when you're going to court
22:46you're going to hire an advocate.
22:48Okay? You're going to spend some money
22:51going to court maybe fair. Okay? You're
22:54going to print documents. You're going
22:56to file documents, filing fees. You're
22:59going to be, you know, calling for
23:02witnesses. You're going to be
23:04photocopying. You're going to be
23:05scanning and printing. You're going to
23:07be reading documents. Are you together?
23:10Now, such a cost. That is incurring
23:13money. Okay? So, if you are the
23:15plaintiff, it means you are going to
23:18incur cost or incur money to sue the
23:21defendant. If you are the defendant, it
23:24means you are going
23:27uh to incur money to defend yourself.
23:30Okay? You're going to incur money so
23:32that you can defend. You can defend
23:34yourself.
23:36Are we together? You're going to incur
23:39money so that you can defend. You've
23:41been sued by the plaintiff. So, because
23:43you've been sued, you are going to hire
23:45an advocate. You are simply going to
23:46hire an advocate so that you can defend
23:48yourself. Now, at the end of the suit,
23:50at the end of the suit, you should be
23:52paid.
23:54Okay, that cost you should be paid the
23:57cost. Okay, let me just give you
24:02uh
24:04Okay, [clears throat]
24:06I'm bringing up my screen because I want
24:09us to have a wholesome discussion on
24:12Let me bring up another screen.
24:15Let me bring up another screen.
24:21And that screen is right there.
24:25You do let me know when you see it.
24:38Uh, not yet. So, there it is.
24:45All right.
24:47I hope you can see it.
24:51So that
24:53you can't
24:56we can can
24:58>> Oh, okay. So
25:02all right. So when you look at the
25:04screen right there, when you look at the
25:06screen right there, you can see
25:10um a bill of cost. Okay. So ignore the
25:13advocate client. uh so that I just
25:16explain to you the elements of cost. The
25:18elements of cost that usually come in
25:20when we are talking about uh questions
25:22to do with uh litigation or really court
25:25proceedings. What are these costs? What
25:26are they? What are the cost? What are
25:27the
25:29um
25:31what are the cost we're talking about?
25:32So the first one of course you can see
25:34the instructions fee. Okay, you can see
25:37the instructions fee. So the
25:38instructions fee simply means the amount
25:40of money you paid the advocate to
25:43represent you. Okay? The much you paid
25:46the advocate to represent you, that is
25:48the instructions fee. I've highlighted
25:50that in yellow. Okay? The instructions
25:53fee. That is your that is your fees,
25:55your cost. So if you hired an advocate
25:58as a plaintiff and you paid the
26:00advocate, okay, you paid the advocate
26:03let's say 5 million, then that is the
26:06instructions fee. You gave instructions
26:08to an advocate and then they represented
26:10you in court. Okay, that is the first
26:13one. The second one is the attendances.
26:16Okay, you have to particularize all
26:18these things. The attendances. So in
26:20terms of the attendances, what are we
26:21saying? That you attended court. So
26:24every time you attend court, you're
26:25supposed to be paid. Okay. Every time
26:28you attend court, you're supposed to be
26:30you're supposed to be paid.
26:33Are we together? So you attend court for
26:36hearing or for mention there's supposed
26:37to be money. So attendances every time
26:40you go to court as an advocate you're
26:42supposed to be paid. Okay. And then
26:44there's the drawings. The drawing simply
26:46means you drafted documents. You drafted
26:48every document you drafted there is
26:50payment for that. Normally there is uh
26:52there's the folio pay uh the folio price
26:55or fees. If you draft one page there's a
26:59pri I mean that is there's a a payment
27:01for that. A payment for that. Okay. And
27:04then uh perusals anytime an advocate
27:07peruses a document there's payment for
27:09that every folio which is 100 uh words
27:13is maybe 42 shillings. Okay. And then
27:16after perusals we have the filings. It
27:19means these are the things that you
27:20filed. These are the things that you
27:22filed in court. And then service. You
27:25walked and you you served. You went
27:28somewhere and you served. And then the
27:30copies the photocopies you made. If you
27:32are to serve a plaint
27:35then those five copies are those five
27:38copies are supposed to be are supposed
27:41to be there and then you come and give
27:43us your total. Okay. You come and give
27:46us your total. So in total you are
27:48charging a I mean a total cost of 1
27:51million shillings. Okay. Now those are
27:54the items in the course. So this is how
27:56the course would look like. All the cost
27:58instructions fee, attendances, drawings,
28:01uh perusals, filings, service, copies
28:06and uh the total. Sometimes you also do
28:09the correspondences. If there's a letter
28:11that you you prepared then that becomes
28:13part of the cost. Now we understand what
28:15cost is. Okay, we understand what the
28:18cost really are. Now after understanding
28:21what cost are then it is important to
28:24again to understand the principles of uh
28:26the principles of cost.
28:28Okay the principles of cost. The first
28:30one is that cost is uh cost is
28:34discretionary.
28:36Are we together? Costs are
28:39discretionary.
28:42Are we understanding? Cost is a cost.
28:45The court will always order for cost if
28:48the court wants. For instance, you've
28:50seen cases where the court says that
28:52every party to bear their own cost.
28:55Okay? So it means you can be given cost
28:58or the court can decline cost. So cost
29:01is discretionary. The next one of course
29:03is that cost will always follow the the
29:06event. Cost will follow event.
29:09Are we together? The cost will follow
29:12event. What is that supposed to mean? It
29:15means that the winning person, the
29:17person that wins ultimately is supposed
29:19to be given the cost. So if the
29:22plaintiff wins, the plaintiff is given
29:24the cost. If the defendant wins, the
29:27defendant is supposed to be given the
29:29cost. Why? Because it was unfair for you
29:32to be uh to be taken
29:35um you know to court or it is unfair for
29:38you to have gone to court. uh because if
29:41this person had agreed or had paid you
29:43earlier, you could not have spent that
29:45money to recover the money that they owe
29:46you. So it means the court will award
29:49you for being successful. So cost is
29:52following the event. Are we together?
29:54Cost is following the event.
29:57And then of course uh the equation of
30:00proportionality where we are saying that
30:01the cost awarded should be proportional
30:04to the nature of the case. Okay. The
30:08cost that you're awarding should be
30:09proportional to the nature of the case.
30:12I hope you're getting what I'm saying
30:13that if you're going to award cost that
30:15cost should be pro I mean proportional
30:18to the nature of uh the nature of the
30:20case.
30:22I hope we are understanding. So it means
30:26that uh if this case was a petty a petty
30:29case or a small case a small claim the
30:32cost will be less than if it was a a
30:34litigation at the Supreme Court. Okay.
30:38And then of course uh the question of uh
30:40no double recovery uh or unjust
30:43enrichment where you're saying that cost
30:45cannot be awarded twice. An advocate
30:47cannot claim twice. An advocate cannot
30:50claim twice or you as a party you cannot
30:52claim you cannot claim twice. Okay. And
30:56then
30:57uh the question of cost being determined
31:00based on based on the subject the
31:02subject matter. So generally when you
31:04talk about cost we are simply saying in
31:05short that cost is discretionary upon
31:09the court. Number two cost must follow
31:12event. Okay cost must follow event. It
31:16simply means that um the willing party
31:19should get the cost if cost is being
31:21awarded and then of course it must be
31:23proportional and then the rule against
31:26double recovery of cost. Now that is
31:29very clear. Now let's talk about the
31:30types of cost that we have. the types of
31:32cost that we have. If you have a
31:33question, please
31:35don't hesitate uh to ask. Let us talk
31:39about the types of costs that we have.
31:41So the first type of cost that we have
31:43is what we call the advocate client
31:46cost.
31:48So the advocate client cost is the cost
31:51between the advocate and his client.
31:54Remember, anytime you hire an advocate,
31:56you're supposed to pay that advocate.
31:58Okay? Every time you hire an advocate,
32:01you're supposed to pay them. Okay? So,
32:04the advocate client cost are cost that
32:06you will pay your client. Sorry, your
32:09advocate.
32:10Okay? These are cost that you're going
32:12to pay your pay your advocate.
32:16I hope you are understanding what I'm
32:19saying. So, the advocate client cost is
32:21an sorry is a cost that is between the
32:24advocate and and their client. cause
32:27between the advocate and their and their
32:29client.
32:33Are we together?
32:43>> Yes.
32:45>> Okay. Now that is the advocate gland
32:48cost and then we have party and party
32:51cost. Okay. We have party and party
32:53what? Party and party cost. Are we
32:56together? the party and party cost. This
32:58is cost between the parties. So it means
33:00this is the instance where uh this is
33:02the
33:04the instance where
33:06the court will award cost to the
33:08plaintiff. So the plaintiff should be
33:10paid cost by the defendant.
33:12So the cost between the plaintiff and
33:14the defendant that is the what called
33:16the party and party the party and party
33:18bill of course or sorry the party and
33:20party cost. The party and party. So the
33:23advocate client cost is a cost between
33:26or the fees between the advocate and his
33:28client.
33:30And then we have the party and party
33:32cost. Party and party cost is whereby
33:35one party is claiming cost from the
33:37other party. Are we together? One party
33:40is claiming cost from from the other
33:42party. And that becomes that becomes the
33:44question of uh the question of the types
33:46of cost that we have. Okay. So I hope
33:49you understand that and we're going to
33:50come back to come back to talk about uh
33:53the two. Now another thing you need to
33:55understand also is the what we call the
33:57cost in cost
34:00uh cost in course
34:03uh I want to type them so that you so
34:06that you see so look at the top of my
34:09screen I'm just typing it there so that
34:11you can understand
34:13cost
34:15in course.
34:18So cost in cause is usually awarded in
34:20applications. Uh this is usually
34:22applicable in in applications. So a cost
34:25is the main suit. You've seen or you've
34:28heard of cost list. A cost list uh is a
34:32list of cases or a list of suits. So
34:36when you're saying that cost in cost
34:39simply means that if you file an
34:41application and you win and you're given
34:44cost in that application then instead of
34:48remember that applications are
34:49interlocatory okay applications are
34:52interlocatory. So instead of the court
34:54giving you cost in that application then
34:56the court will say that cost will be
34:59issued in course. It means that the cost
35:03will be issued in the final in the final
35:06file the main file. So it means the cost
35:09that you've won in this application will
35:11be added to the cost
35:14that you you might win in the main in
35:17the main suit so that we don't have two
35:19uh the two scenarios of of taxation. I
35:23hope you get what I'm saying. So that we
35:24don't have two scenarios scenarios of
35:26taxation. We are going to have cost in
35:29cost. Cost in cost. Okay. All right.
35:35Now after that we also have something we
35:37call the throwaway cost. Now throwaway
35:40cost happens in the instance where a
35:43judgment is being set aside.
35:46Okay. Judgment is being set aside. Okay.
35:49We call them throwaway uh the throwaway
35:51course.
35:54Let me just type there.
35:57So the throwaway cost. Now throwaway
35:59cost is where judgment is being set
36:01aside. So for instance, if you got a
36:04default judgment against the defendant
36:07because the defendant did not enter
36:09appearance and then the defendant comes
36:12to court after you've been given the
36:14default judgment and they make an
36:16application to set aside the default
36:18judgment
36:19and the court has agreed with them. then
36:23the defendant will have to pay you the
36:25throwaway cost. Throw away simply means
36:27that you are going to throw away your
36:30judgment so that you can start a fresh
36:32and for that reason you should be given
36:33the consideration for throwing away that
36:36specific judgment or order. So anytime
36:39you're compromising your order you're
36:41supposed to be given a throwaway cost
36:43that this judgment is being thrown away.
36:45Therefore, the person in whose benefit
36:47is being thrown away should pay the cost
36:50and that cost is called the throwaway
36:52cost. So, essentially the defendant is
36:54telling the plaintiff, please throw away
36:56that judgment and in consideration I
36:59will pay you the cost of getting that
37:01judgment.
37:03Okay? So, throw away cost. Are we
37:06together?
37:07And then of course we have uh the
37:10instance where uh the council is
37:12supposed to pay cost. uh there are
37:14certain instances where the court will
37:16order that council to pay cost. So an
37:19advocate to pay cost. So remember that
37:23advocates are professionals. Okay? The
37:25advocates are professionals. So in the
37:26instance where an advocate bungles up a
37:29client's case, you mess up the client's
37:31case until your client loses. Then
37:34you're supposed to pay the cost. Your
37:36client should not pay the cost. Okay?
37:55All right. Sour s. So that is advoc and
37:58this is very special because there are
38:00very special occasions where courts have
38:02ordered that instead of the client
38:05bearing uh the cost or the expenses of
38:08you being uh you being unprofessional or
38:12you not being serious or being negligent
38:14as an advocate you as the advocate you
38:16will pay that cost. For instance, if
38:18you're supposed if you're given
38:19instructions and you're supposed to pay
38:21sorry to file some documents and you
38:24don't file those documents and then your
38:25client loses the case, your client will
38:27not be told to pay the cost. You as the
38:29advocate, you shall pay the cost.
38:32Okay? And then of course we have the
38:34questions to do with no order as to
38:36cost. So no order as to cost simply
38:38means that the court has decided that
38:41none of you will pay cost to the other.
38:43Why? because that matter is a matter of
38:46uh is a matter maybe of public interest
38:48or is a matter that doesn't each of you
38:51have won. Okay, each of you have won.
38:57So it means no nobody's the actual
38:59winner.
39:01Okay, so in that case uh no each party
39:04will bear their own cost. That is what
39:06you're saying. Each party will bear will
39:09bear their own cost. Now let's go back
39:10to something that I've mentioned which
39:12is the question to do with uh the
39:13question to do uh with cost following
39:16the event. Cost following event. So
39:19normally normally the winning person is
39:22supposed to get cost. The person that
39:24wins the case is supposed to be given
39:26the cost. However there are instances
39:29when you as a winner you have not
39:34gotten the cost. You've won the case
39:36against the defendant, but you've not
39:38been given cost. Okay. You haven't been
39:41given cost.
39:43Okay. For example, tell me
39:47uh
39:49when a successful party may be denied
39:52cost
40:09in a situation where the party did not
40:11ask for the costs in the pleadings.
40:17That is one. If you don't plead for
40:19cost. Uh yes. Here and there. Uh-huh.
40:27Somebody's giving another attempt.
40:38Yes. Murabi Dennis.
40:43in a situation where a party was
40:45supposed to serve a demand letter but
40:47they did not.
40:50Yes.
40:51And this even in real life
40:54uh this is in real life you you you know
40:56this applies in real life. For instance
40:58let's assume that um
41:01you stay in thicker you know you stay in
41:04thicker and you have a friend of yours
41:07uh that stays in wrongai. Okay. Now on
41:11this particular weekend uh or on this
41:14particular evening Friday evening you've
41:17agreed you've told your friend or within
41:19the week you told your friend I will
41:21come and see you on on Friday or I'll
41:25come and see you and then you leave your
41:27house in you go all the way to Rangai
41:31you get wrongai you don't find them
41:34can you tell them to refund you the
41:36money that you've used for transport no
41:39you can't Why? Because when you're
41:41leaving Thika, you could have confirmed
41:43with them whether they are in the house
41:45or whether they are available to be seen
41:47on that day. So that if you waste your
41:49money from thika all the way to wrong
41:51guy without telling them, then it is
41:53your trouble. You bear that cost. The
41:55same thing if you are a plaintiff who is
41:59suing the defendant and you sue the
42:01defendant without informing the
42:03defendant that you're going to sue them
42:06then you will not be given the cost
42:09because the argument is had you informed
42:13your friend that you're going they could
42:15have told you I'm not around or they
42:18could have waited for you. The same way
42:20had you informed the defendant that
42:22you're going to sue them they could have
42:24paid you. So that there's no need of you
42:26going to court. For that reason, you
42:28will not be given the cost. Okay? You
42:31will not be given the cost. So if you
42:32fail to serve a demand letter, then in
42:34most instances, the court will deny you
42:38the cost. Are we together?
42:47>> Yes, we are.
42:52>> All right. That is the first uh the
42:54second instance saying what is the third
42:59um if parties settled before decision is
43:03delivered.
43:04>> Come again.
43:06>> When parties settled before decision is
43:08delivered the court will order each of
43:11them their own.
43:13>> Yes. So if parties write a constant h it
43:15means when parties have settled the
43:16matter when the matter has been settled
43:19then uh the court will not make an
43:20orders to cause because parties have
43:22agreed on on the way forward. Uhhuh.
43:26Yes. Caller
43:30>> uh when the plaintiff caused delay
43:34during the prosecution of the case.
43:40Come again with the plaintiff.
43:43>> The conduct of the plaintiff during the
43:45prosecution of the case in instances
43:48where they cause delay.
43:53>> Yes,
43:55that is uh very well. So we look at the
43:58conduct of the plaintiff or the winning
44:00party. If that matter was delayed just
44:03because of you being uh not behaving
44:06yourself, then we shall not give you
44:09cost. We shall not give you course.
44:22>> Uh-huh. Yes. Uh Usain
44:26>> um constitutionalation j the court
44:30normally does not award costs.
44:34>> No, not really. Not really. Consider if
44:38you sue me for violation of my right.
44:40Sorry. If you sue me for violation of
44:43your right that maybe I violate your
44:45privacy that is a constitutional
44:47litigation. Will the court give you
44:48cost?
44:49>> Um okay. If I maybe put it public
44:53interest litigation.
44:55>> Yes. Public interest litigation. Uh
44:57public interest litigation. Uh this is
45:00an instance where um you know the the
45:04real winner is not the parties. It is a
45:07P. For instance, when Okata goes to
45:09court to sue on behalf of maybe the
45:12residents of a specific region, then
45:14he's not aware of the cost because a
45:16public interest litigation. Uh-huh. What
45:19other instance are you going to be
45:20denied cost?
45:25Or in the instance where the successful
45:28party also disobeyed some court orders
45:30or violated some procedural some
45:32procedural rules. So, you could be a
45:34winner. You've won the case, but you
45:36violated some rules. Okay, you violated
45:39some orders. They the court gave an
45:41order specifically to do something, but
45:43you violated those orders. Therefore,
45:45you are not going to be given you're not
45:46going to be given cost. Okay? So again,
45:49if you file a vexacious litigation or a
45:52vexacious suit, it means this matter
45:54needed not to have come to court. It is
45:56a petty matter. Even though you've won,
45:58it is a petty matter. There's no need of
46:00you being given being given the cost.
46:02And then of course we have instances of
46:04partial uh success. It means that you've
46:08won this case partially. So both of you
46:11have won half half then nobody uh nobody
46:14is supposed to pay uh supposed to pay uh
46:17the cost. So of course we've said uh
46:19that um if again uh you have through the
46:25conduct of yourself uh just like has
46:27been said you've really misconducted
46:29yourself or you've delayed the court
46:32process or you've done something that
46:33violates or is not in good faith then
46:36that is that is a violation of uh of the
46:38code. again suits against public
46:41officers or suit against persons that
46:44were acting in in good faith or acting
46:47in the performance of their duties then
46:49you might not also get caused. Are we
46:52together? You might also not be
46:54successful in getting in getting the
46:56cause. So those are some of the
46:57principles some of the instances and we
47:00can see that from there's a question
47:02paper in 2024 I think where the court
47:05was very clear sorry where the examiner
47:07was very clear that you need they need
47:08to understand instances when a
47:11successful person will not be given will
47:13not be given the cost and I hope that uh
47:16when you look at that paper you shall be
47:18able to to understand now having
47:21understood that having understood that
47:23we have also talked about the principles
47:24of cost uh the principles of cost. Of
47:27course, that is very clear. Now, it is
47:29time for us to prepare uh what we call
47:33uh the bill of cost. It is time for us
47:35to prepare the bill of cost. I want us
47:36to look at the bill of cost very
47:38quickly. Uh but we start from a
47:40phenotation.
47:54Yes, Dorin.
47:57Yeah, thank you. I'm going to the point
48:00that you've explained that one of the
48:02reasons is that a demand letter was not
48:05issued. How does that sit with order
48:08three rule two where one of the
48:10documents which should accompany
48:12uh the suit should be a copy of the
48:14demand letter before the action? How do
48:16we recon?
48:19>> The suit will still be accepted even if
48:21you never served. Okay. Even if you
48:24never served um a demand letter, okay,
48:28even if you never served a demand
48:30letter, then
48:32you know the suit will still be
48:34accepted.
48:35But now you not get the cost and that is
48:37one of the consequences of not serving a
48:39demand letter.
48:42The consequence of not serving a demand
48:43letter uh is that
48:47are we together?
48:50>> Yeah, we are.
48:51>> So the suit will still be accepted. it
48:53will still be accepted. Uh but of course
48:56you will not you will not get the cost.
49:04Okay.
49:10All right. So, so is there any question
49:12before we look at u
49:15before we look at uh a bill of cost
49:19uh and we had to start with and start
49:21with the
49:23advocate client bill of cost uh which is
49:26the same as a party and party but we
49:28look at the differences. We shall look
49:31at the differences. Let me just bring up
49:33my screen very quickly.
49:37But the course are very simple. Uh and
49:40there are questions that you find just
49:42randomly
49:43uh when you're scrolling down to
49:45question six, you will find you will
49:47find that.
49:49Okay, you will find uh uh that. Now I
49:53want us to look at um the party and
49:56party sorry the advocate client bill of
49:58course first and then we look at uh we
50:01look at the
50:04what we calling the
50:08patent party. Now, so before you prepare
50:13before you prepare uh the bill of cost,
50:16you have to prepare a fee note. And a
50:18fee note is a letter addressed to the
50:21client telling the client that hey
50:23please pay our fees as followed. Okay,
50:26it's just a normal letter with a subject
50:27line addressed to your client. So if
50:30your client is Mr. Thomas, you address
50:32it to Mr. Thomas. spe this and then
50:34subject you write fees in respect to
50:38maybe this suit or this purchase.
50:41Okay. And then after that you proceeded
50:44you proceed and give us the phenot. So
50:46the f note has got two parts. The first
50:49one is just the summary of the services
50:52you've rendered and then the
50:53disbbursement and then the VAT full stop
50:56and then the total.
50:58Okay. So
51:03let me just uh
51:06remove this
51:12so that we type something there. So
51:13assuming that you've received
51:15instruction from your client to file a
51:17petition seeking certain orders.
51:22Okay, file a petition seeking certain
51:24orders. Then what are you going to do?
51:26So let's type something. So you just
51:28tell them because you are providing a
51:30summary the details will be the bill of
51:32cost should they not pay. Okay the
51:35details will be uh will be the bill of
51:37cost. So let's go. So towards payment of
51:39a professional fees
51:42uh for instructions
51:47to file
51:51uh petition
51:56a petition
51:59seeking
52:02a red address
52:04for violation.
52:09Violation
52:12of your
52:15seeking
52:17violation of your rights
52:24your rights and fundamental freedoms.
52:31Okay.
52:34Somebody's having their video on.
52:37Please uh mute.
52:40Okay. So, let's leave it there. So, you
52:44want to be as short as possible, but you
52:46can give the client a summary of
52:48everything. Maybe towards filing the
52:51petition, towards filing an application,
52:53towards getting these orders, towards
52:55filing submissions and all that. you you
52:58indicate uh you indicate that to all
53:00that you indicate uh you indicate um
53:05uh everything that has been listed uh as
53:09part I mean in that file because the
53:10file will have the documents you filed.
53:12So generally just give the client the
53:13summary of what you did. You filed a
53:15petition seeking redress of the
53:17violation of his rights and fundamental
53:19freedoms and then you give us the
53:21instructions to how much are you
53:22charging? you're charging them 750,000
53:26and then you go to the disbbursement
53:28that is the second item in the bill of
53:30cost is usually uh disbburmented. Okay.
53:33So under disbbursement what are we
53:34saying that maybe for the copy telephone
53:37transport charges uh correspond
53:40correspondences and anything else you're
53:42charging them 55,000 and then you have
53:45the VAT 16% of that which is that the
53:50total you're asking from them is Kenya
53:52shillings 933,800
53:55okay and then you give them yours
53:57faithfully that and then you provide
54:00your account details please And uh
54:03please note that our account details are
54:06are as follows.
54:08Okay. So that is um
54:14so key
54:16advocates uh that and that. So we just
54:19give you account details. We just give
54:21you account details so that they wire
54:23that money uh to your account. They wire
54:26that money to your account. Are we
54:28together? That is as simple as it is. So
54:31this is the fee note. The fee note is
54:33what you send to your client. Okay. The
54:36fee note is what you send to your
54:37client. Then your client is supposed to
54:39pay. Call please mute your video. Your
54:43client is supposed to pay.
54:45Once you send the phenote, if he's a
54:47good client, then your client will
54:48proceed and will proceed and pay. If is
54:51a good client. I'm I'm you know
54:53stressing on that. Now once you send
54:56this out and they don't pay you, then
54:58you shall prepare. And now prepare the
55:01itemization. You item the services you
55:04render and that comes as a as a bill of
55:07cost. Any question.
55:21All right. So if there's no question uh
55:29if there is no question I want us to
55:33uh look at the bill of course as well.
55:35So this is the fee not so. So the f not
55:37is as simple as it is. Just tell the
55:38client how much you're charging them and
55:40why you're charging them that uh that
55:42much. Okay, that is uh the bill of cost.
55:45So let's look at that is the phenot.
55:46Let's look at the bill of cost. So
55:48you're supposed to serve them with a fee
55:49and then wait 30 days. So if 30 days
55:52have lapsed, okay, if 30 days have
55:55lapsed since you serve the fee note,
55:58okay,
56:00then you shall prepare the bill of cost.
56:01Now you shall go and prepare your bill
56:04of cost. And uh I hope you can see my
56:07bill of cost on the screen.
56:11I hope you can see. So normally your
56:13bill of cost will be uh will of course
56:17be looking like that. Your bill of cost
56:19will be looking like that. So let's go
56:20to the bill of cost itself.
56:23Uh so you can be told to prepare a bill
56:26of cost. So remember that uh this is um
56:32this is for filing. This bill of course
56:35is for filing but you can be told to
56:38just prepare a bill of cost like that.
56:41And I will I will uh I will I will come
56:44back to it. I will come back to it.
56:46Let's just look at the bill. So ignore
56:47everything else. Look at the bill of
56:49cost. So the bill of cost will have
56:51different parts. So the first column is
56:54the item, the date, the particulars of
56:56services you rendered, the amount of
56:58money you're charging and the last one
57:00is very important which is the question
57:02of taxation taxed off. Okay, now let us
57:07go. So the first bit, the first in your
57:09bill of course is the instructions fee.
57:12The instructions fee. And then after the
57:15instructions fee, we have the attent. So
57:17the instruction fee is what you're
57:18paying the advocate and the instruction
57:20fee is usually determined by by
57:25uh the the subject matter. The
57:28instruction fee is determined by the
57:29subject the subject matter. So if the
57:31subject matter is let's say land valued
57:33at 10 million that will the subject for
57:37the instructions fee or the subject
57:38matter for the instruction fee. So we'll
57:40calculate a percentage of that. Okay.
57:44And then of course uh we go to the
57:46attendances. So normally when you are in
57:49the high court and of course you are
57:50using the arrow [clears throat] the
57:52arrow is the advocates remineration
57:55order. The arrow is the advocates
57:58remineration order which provides how
58:00you calculate how you calculate uh the
58:03instructions fee. Okay. So you can
58:07overcharge the client if you want as
58:09much as you want to as much as you want
58:11to. So we have the instructions fee. Uh
58:14you can increase it by 50%. You can add
58:17a VAT on top of that and then you give
58:19us the total uh the total there. Okay.
58:23And then we have the attendances. So you
58:25go back to the file and you say on the
58:2731st of July I was in court for hearing.
58:31On the 8th of August I was in court for
58:34mention. On the 15th of August I was in
58:36court for mention. So you list down all
58:39the days you attended court. Okay? And
58:41then you go to the drawings. It means
58:43the things you drafted. So you're saying
58:45that on this date I drafted a notice of
58:48appointment of advocate.
58:50Okay. I drafted a notice of appointment
58:52of advocate. On this date I drafted a
58:54notice of motion. On this date I drafted
58:56an affidavity of service. You know again
58:59mention notice hearing notice.
59:02Whatever you drafted you list them
59:03there. And the much that you're
59:05charging, the much you're charging will
59:06be depending on will depend on the I
59:10mean it will depend on the the arrow.
59:13The arrow will give you the minimum you
59:15can charge. For instance, if you attend
59:16court for a hearing, normally it is
59:197,000. So you can charge
59:22up to 7,000 or even above 7,000. So the
59:25arrow is supposed to give you the
59:27minimum the minimum. Okay? But you can
59:30charge you can charge uh less than what
59:33sorry you can charge more. If you charge
59:35less that is undercutting
59:37okay you give us everything else you
59:38drafted and then the perusals every time
59:42an advocate peruses a document. For
59:44instance if you are an advocate you are
59:46served with a defense and you have to
59:49read the defense. So every page you
59:51peruse that is money. Okay. And that is
59:54supposed to tell you let's come let me
59:56show you something.
59:59Uh-huh.
1:00:01Let's come here at paragraph 8.
1:00:05Uh 8. You can see 8 where the party has
1:00:08indicated that they drafted a notice of
1:00:10motion application dated 23rd of July
1:00:132018. Okay. And then you can see that at
1:00:18235 shillings per folio.
1:00:22So it means you look at the number of
1:00:24folios and then you multiply by 235
1:00:28shillings. Now a folio is 100 words. So
1:00:32it means whatever you drafted in that
1:00:34notice of motion we shall count up to
1:00:36them. If it is one page, one page
1:00:39usually has like three folios. It means
1:00:42you're counting 100 words. So every 100
1:00:45word is a folio. So every 100 word you
1:00:48draft is 235. And that explains why in
1:00:52practice advocates will be writing
1:00:54things, writing and writing even things
1:00:57that are not important. Somebody's
1:00:58having the video on. Mute it. Your video
1:01:01is on. Please take it off.
1:01:04Now I've explained that that if you are
1:01:08in practice you can see that the entire
1:01:11page of a petition the first page is
1:01:14just in the matter of in the matter of
1:01:16in the matter of in the matter of in the
1:01:17matter of in the matter of very useless
1:01:20things. You do that in practice to
1:01:22impress your client and to get more fees
1:01:25should the client refuse to pay so that
1:01:27you can can get taxed. So it means 100
1:01:31words is a folio. So if you drafted 500
1:01:35words in one document those are five
1:01:37folios times 235 that is that much per
1:01:41page. So you can you can see even that's
1:01:44why even contracts in practice a
1:01:46contract is 100 pages unnecessary pages
1:01:49because advocates are paid to write.
1:01:52Okay they are paid to write that
1:01:55explain. So in an exam nobody's paying
1:01:57you. Okay nobody's paying you. As a
1:02:00matter of fact, you're the one paying
1:02:01the examiner. So, nobody's paying you in
1:02:04an exam. So, stick to the relevant
1:02:05things. Okay? When you come out on
1:02:08practice, you can now draft. You'll have
1:02:10overnight, even months of months to
1:02:13prepare your document. You can write as
1:02:15many as you want in an exam. Please
1:02:18stick to the most important bit and go
1:02:20to the next question because 3 hours is
1:02:22not a long time. Anyway, so that is that
1:02:25is the draftings.
1:02:27Okay. Now after the draft change of
1:02:29course we have the perusal. So every
1:02:30time a document is served upon you the
1:02:33document that you didn't draft you
1:02:35peruse it. So if you're the defendant
1:02:37and you have been served with a plaint
1:02:41you will peruse that plaint
1:02:44okay and perusal again is for every page
1:02:48you peruse every page you peruse there's
1:02:52money. So if you peruse a folio 42 B.
1:02:57Okay.
1:02:59Anyway, so that is all that. So the
1:03:02filings are clear because you file a
1:03:04document. You have an invoice uh or a
1:03:06receipt given by the court. Everything
1:03:08you filed, you indicate there. And then
1:03:10for service, if you go out of your
1:03:12office to go and serve, you shall
1:03:14indicate there you went to serve. Okay?
1:03:17And then the photo copies you made the
1:03:20copies you prepared you made copies you
1:03:23shall be you shall also charge on the
1:03:25copies and remember that the arrow
1:03:28provide for those copies it will tell
1:03:30you there that the copies are the copies
1:03:32are this much one copy is this much and
1:03:35then you come and give us your total
1:03:37which is 1,000 sorry 1 million 38,55
1:03:42shillings. Now once you prepare this
1:03:44document, once you prepare this
1:03:46document, you file it, you file it in
1:03:49court through a miscellaneous
1:03:51application. You bring this application
1:03:54uh this document through, you attach it,
1:03:58you attach it in an application.
1:04:01So once it is filed in court, you file
1:04:03it in court, then the taxing officer
1:04:07will now tax it. It doesn't mean Sorry.
1:04:17Sorry. It doesn't mean that whatever
1:04:20you've prayed for, you see here, you're
1:04:22praying for 1 million and 38,000.
1:04:26It doesn't mean that is what you're
1:04:27going to get. Okay? You can get less,
1:04:30you can get more. So, let's go and tax.
1:04:33So once you file it the taxing officer
1:04:35who is usually the magistrate or the DR
1:04:38the deputy registister of the court will
1:04:41go and tax for instance you see you have
1:04:43a column there for taxation so the
1:04:47register will come there and see okay
1:04:48instructions fees you are charging
1:04:50550,000 okay what was the subject matter
1:04:53you've indicated a a constitutional
1:04:56petition okay in which court maybe the
1:04:58ELC what was the issue a simple
1:05:01violation ah That is 200,000. So the
1:05:04taxing officer will write there 200
1:05:07200,000. Let me highlight that with
1:05:09blue. So in blue. Yes. So the taxing
1:05:12officer will tax it at 200,000 or they
1:05:15can maintain the 550 or they can
1:05:18increase. If whatever you did was very
1:05:21crucial or very very important
1:05:24then they can say okay 550
1:05:28less work 600,000 or 700,000 so it can
1:05:33be increased maintained or reduced that
1:05:35is the jurisdiction of the taxing
1:05:37officer another one if you say that you
1:05:40attended court for hearing there are two
1:05:43things there the court can agree with
1:05:44you and say okay 5,000 is enough or the
1:05:48DR can say on this date you are lying
1:05:50the court was not sitting because the D
1:05:52has that record the court was not
1:05:54sitting in this date so they will give
1:05:55you zero
1:05:58okay or if you attended court and maybe
1:06:01your office is just next to the court or
1:06:03there's no distance you covered the
1:06:06court the D will say okay two 2,000
1:06:09instead of 5,000
1:06:11okay and then we go to we go to the
1:06:14perusals you peruse this documents I've
1:06:16looked at this document I don't think it
1:06:18is 13fold folios it is just maybe 10
1:06:20folios so instead of 630 we are going to
1:06:22give you for 20
1:06:25okay and then you peruse a power of
1:06:27attorney you are charging 600,000 600
1:06:30shillings no let's give you 400 or 500
1:06:34so what I'm trying to tell you is that
1:06:36once you file this document the DR that
1:06:38is a taxing officer or the magistrate
1:06:42will tax it according to the arro now
1:06:44the DR will also go through the arrow
1:06:46and they can either
1:06:48agree with you or disagree with you and
1:06:51then at the end of the day the DR also
1:06:54will come and give us their total here.
1:06:57Okay,
1:06:59sorry. The DR will come and give us
1:07:01their total there. So let's say the
1:07:02total according to them
1:07:05uh is uh 1 million or 700,000.
1:07:10They have taxed it off to 700,000. you
1:07:13prayed for 1 million and then um the
1:07:16deer said no no no let's give you
1:07:18700,000 so they just come there and
1:07:22indicate 700,000 and then once they do
1:07:24that they will issue a ruling okay once
1:07:28they do this they will issue a ruling
1:07:31what am I saying there a ruling will be
1:07:34issued for this 700,000
1:07:38okay and then for that ruling you can
1:07:40now extract a decree
1:07:42or the order and then you proceed and
1:07:45serve and execute. Now how is the ruling
1:07:48going to be? So the register will simply
1:07:49say that this matter having come up for
1:07:51taxation on this day it is hereby tax as
1:07:54follows. It will they will write
1:07:56instructions fee 200,000 attendance
1:08:015,000 drawings 30,000
1:08:05perusals 1,500
1:08:07okay filings 20,000 service maybe 80,000
1:08:13and copies finally we have 25,000 in
1:08:16total the bill has been taxed as a total
1:08:20of Kenya shillings maybe 300,000
1:08:24or 700,000 as it is. So that is the
1:08:27ruling. Now if you're not happy with
1:08:29that ruling, you will object and then
1:08:32you can appeal.
1:08:34So I'm just giving you a summary because
1:08:36we're coming back there. We are coming
1:08:37back there. So are we together in terms
1:08:39of the taxation process and the bill of
1:08:41cost?
1:08:52James Oruta
1:08:56Thank you councelor. I just have one
1:08:58question. In case where
1:09:00um an advocate has uh done a lot of uh
1:09:04verbosity just to
1:09:07increase the number of words. Uh does
1:09:10the does the deputy register can the
1:09:13deputy registister also overrule excess
1:09:16uh of words?
1:09:19>> Yes, they have that discretion. They
1:09:23have that discretion. that decision is
1:09:24given to them. Okay, it's given to them.
1:09:27So they can they can say that ah this
1:09:30word the things you're writing here from
1:09:33the first word to the last page is just
1:09:36right in the matter of this in the
1:09:38matter of this they'll not give you
1:09:40anything there. So if you're not and of
1:09:42course they will write a ruling on that
1:09:43they will say that on the question of
1:09:46drafting okay which you are paid per
1:09:49word in the question of drafting instead
1:09:51of giving you 30,000 that you claimed
1:09:54for we are giving you 15 because we
1:09:56think that some of those words that
1:09:58you're indicating there are just to fill
1:09:59the pages so we are not going to pay you
1:10:01for that if you're not happy with that
1:10:04you will proceed and file a reference.
1:10:06Are you together or?
1:10:10>> Yes, council. Thank you.
1:10:12>> So, you have to be very lucky. You have
1:10:14to be very very lucky. Uh, if you're
1:10:17lucky, then the DR will just, you know,
1:10:20tax it as build. Taxing as build simply
1:10:22means if you build 1 million, that is
1:10:24what the DR is going to give you. The DR
1:10:26will just come and say, okay, okay,
1:10:281,400,400 the same way. And then uh the
1:10:31DR will give a ruling and say that this
1:10:33matter has been filed has been taxed as
1:10:35build. It means whatever you build is
1:10:37what you're getting as a taxed figure.
1:10:41Maka Ian
1:10:45thank you. I have a question on
1:10:48the fact that an if if an advocate
1:10:51chooses to go straight to taxation
1:10:54without serving the fenote does that
1:10:55invalidate the process?
1:10:58No, it doesn't really invalidate the
1:11:00process. Uh, it doesn't invalidate the
1:11:02process. But sometimes, sometimes it
1:11:05will not make sense because remember you
1:11:07have to serve, you have to serve the
1:11:09other party. You have to serve the other
1:11:11party. And because the reason why you
1:11:13are actually taxing, you have to
1:11:14demonstrate that they have refused to
1:11:15pay you. They have refused to pay you.
1:11:18And one of the documents you're going to
1:11:19be filing there is the demand. And the
1:11:22law requires very well, the law requires
1:11:24very well that you need to send a
1:11:26demand. So if evidence is brought that
1:11:28you never filed a demand, you never sent
1:11:30a feno to them, then sometimes the
1:11:32taxation will be thrown out so that you
1:11:33go file a demand and then you can come
1:11:35and you can come and tax if they have
1:11:37refused to pay you. So remember that
1:11:40your client can go and file an objection
1:11:43saying that we are being served with a
1:11:45with a fee note.
1:11:49>> Thank you. Thank you.
1:11:52>> All right. But of course remember uh
1:11:55remember that sometimes parties will
1:11:57want to tax in uh they want to tax in uh
1:12:00in silence. You know they'll go there uh
1:12:04they'll go there and uh file a bill of
1:12:07cost and then you know they'll be told
1:12:10you know once you file a bill of cost
1:12:11you have to go and serve your client.
1:12:13You have to go and serve your client and
1:12:15then they'll come and lie that they have
1:12:17served the client and because the client
1:12:19has not entered appear has not filed
1:12:21submission because the client must must
1:12:22file submissions because the client has
1:12:24not served submissions then the court
1:12:28will proceed and proceed and tax in the
1:12:30absence of the client and then you get
1:12:32that order and then you go and attach uh
1:12:35the client's the client's assets because
1:12:38you are trying to surprise them. That is
1:12:40sharp practice. It is sharp practice and
1:12:43of course if the client goes to court to
1:12:46you know set aside that taxation you
1:12:48will be slapped with a lot of cost
1:12:50yourself because you are lying that you
1:12:51served that you didn't serve. So parties
1:12:54do that a lot of times parties do that a
1:12:56lot of times and sometimes we do it
1:12:57because we want to surprise you. So
1:13:00you've seen sometimes when even a matu
1:13:04is stopped uh if it is a
1:13:08um sub metro you just stop that metro on
1:13:12the road and you tell the driver to get
1:13:13out. You tell the driver this vehicle
1:13:16has been proclaimed by the auctioneers
1:13:17please get out and then everyone else
1:13:19will leave the car and then uh they can
1:13:22look for another car or look for another
1:13:24super metro. Sometimes they do that
1:13:27because they want to they catch you in
1:13:29the element of surprise. But of course
1:13:30at the ultimately ultimately if the
1:13:33client is serious they can have that
1:13:35matter set aside the bill of course set
1:13:37aside and taxation started a fresh or
1:13:40they can just leave it and say okay fine
1:13:42you want us to pay you we're going to
1:13:44pay you.
1:13:46All right M.
1:13:50>> Thank you. Um my question my concern is
1:13:53uh during the client interview when you
1:13:55are getting instructions from the client
1:13:59>> it is a requirement maybe in his trial
1:14:02that you should at least discuss the
1:14:04fees with the client. Are you supposed
1:14:07to give the client all this breakdown of
1:14:10whatever you're going to do?
1:14:12>> No.
1:14:14>> Remember
1:14:15this is a punishment for the client.
1:14:17Remember when you're discussing the
1:14:18matter when you're discussing the matter
1:14:21sometimes you don't discuss the you
1:14:22don't have to discuss the fees it is
1:14:24prudent for you to discuss the fees so
1:14:25that you know as an advocate what I'm
1:14:27getting myself into okay the caban rule
1:14:30if the client is not able to pay your to
1:14:32match the fees you're asking you leave
1:14:34them you don't have to discuss that but
1:14:36you see advocates must be paid whether
1:14:38they discuss fees or not so sometimes
1:14:40you get the instructions the client
1:14:41tells you hey run to court urgently
1:14:47get the order for me and then we'll come
1:14:49back and sit down to discuss. So when
1:14:52you do that and they refuse to pay you
1:14:54then you send them a fee note. Okay. Now
1:14:57a fee note usually is very summarized.
1:15:00Okay. For instance you could see the fee
1:15:02note I was sharing on the screen. You
1:15:04could see the fee I was sharing on the
1:15:06screen was for uh let's say it was
1:15:10900,000
1:15:12or 750,000.
1:15:15But now when we bring the bill of cost
1:15:17it must be more. Normally the bill of
1:15:20cost will be more.
1:15:23Why? Because this is now war. The CL has
1:15:26refused to pay.
1:15:39Then you go and now it be pity and tell
1:15:42the client on this day I went to court
1:15:445,000. On this day I went to court
1:15:4610,000. On this day I filed this
1:15:48document this much. Okay. Now when you
1:15:52do that, when you do that, then uh the
1:15:55client then will be uh will be forced to
1:15:58pay you now by force because they refuse
1:16:00to pay you when you requested humbly.
1:16:03When you send them a fee note, they
1:16:05refuse to pay. Now you are itemizing
1:16:07everything and telling the court to tax
1:16:10it as such so that they can uh they can
1:16:13um they can pay. But sometimes also
1:16:15remember that you can enter into a free
1:16:17agreement. Sometimes people do enter
1:16:20into fee agreements where they they
1:16:21agree that on this matter we are just
1:16:24going to take 200,000. So it means if
1:16:27you file for taxation the client will
1:16:29object okay the client will object and
1:16:32file a reference saying that this matter
1:16:34should not be taxed. Why? Because the
1:16:37two of us already agreed on the fees. We
1:16:38had a fee agreement uh that uh the the
1:16:41advocate is trying to run away from. I
1:16:44don't know whether you get what I'm
1:16:45saying. Mua
1:16:53Muer Moses.
1:16:56>> Yes. Yes. Mim. Thank you. But a follow
1:16:58up maybe on the same
1:17:00>> you see during during the trial
1:17:03sometimes uh I see the court may be
1:17:06awarding the other party telling the
1:17:08other advocate to pay the other advocate
1:17:10maybe a certain amount for delaying or
1:17:12for maybe doing something. When
1:17:14calculating the pool of cost
1:17:17>> now, do you include the same money that
1:17:19the other advocate paid you? Yes, you
1:17:21attended court, the other advocate maybe
1:17:24did something, but you awarded the cost
1:17:25by the court. Will you still include it
1:17:28when calculating the bill of cost for
1:17:30the client?
1:17:31>> Yes. What whatever you pay on behalf of
1:17:34the client must anytime the court says
1:17:35that you pay something, you're doing so
1:17:37on behalf of the client. So, you have to
1:17:39charge the client. you're doing so on
1:17:41behalf of the client and you have to
1:17:43charge the you have to charge the
1:17:44client.
1:17:46So you'll add that as as the payment you
1:17:49made on bealf of the client.
1:17:52All right. So that is that is that. So
1:17:55the next thing I want us to talk about
1:17:56very quickly are the factors the court
1:17:58considers when taxing the instructions
1:18:01fee. Now out of the bill of cost. Now
1:18:04remember again before I forget that the
1:18:06party and party bill of cost will also
1:18:08look like will also look like that. The
1:18:11party and party bill of cost will also
1:18:13look like will also look like whatever
1:18:15you can see on your screen. The only
1:18:17difference is that this is now party and
1:18:18party. So the party and party this is
1:18:20between the advocate sorry the plaintiff
1:18:22and the defendant. You simply write
1:18:24there uh that you received instruction
1:18:26from your client to do this the same
1:18:28thing you've done.
1:18:30Okay. So you are preparing the cost you
1:18:32incurred to sue and that cost includes
1:18:36how much you paid your advocate,
1:18:38attendance of court, the same thing is
1:18:40the same thing. It's the only difference
1:18:41that this cost is now being paid by the
1:18:44other party and not your client. Now
1:18:46what are some of the factors the court
1:18:48will consider in tax taxing
1:18:52um the instructions fee?
1:18:55Okay. Yes. Let's go quickly guys. I
1:18:58really thought that we could uh get done
1:19:00with this and talk about tribunals but
1:19:02looks like we are moving very slowly but
1:19:04anyway yes Hussein what is the first
1:19:06thing remember we are we we are taxing
1:19:09the bill and I've said that out of this
1:19:12bill of cost out of everything you are
1:19:13seeing here one of the things that will
1:19:15bring a lot of contention is the
1:19:18instructions fee some of these things
1:19:20are very clear some of these things are
1:19:22very clear attendance you went to court
1:19:25okay
1:19:26okay they are providing pay for there.
1:19:28But when it comes to the taxation of the
1:19:30instructions fee, how much an advocate
1:19:32should get, that is where the contention
1:19:34usually comes. Okay. Now, what are the
1:19:37factors the court will consider in
1:19:41taxation when you're taxing a deal of
1:19:44course which includes um of course the
1:19:48the instructions fee. What do we look
1:19:51at? What are the factors the court will
1:19:53consider? Guys, put up your hand.
1:19:55What are the factors the court will
1:19:57consider before or when taxing or the
1:20:00taxing officer? What are the factors
1:20:02they consider when they tax this bill of
1:20:05cost? Yes, Diana Alando.
1:20:09>> The subject matter of litigation.
1:20:12>> The subject matter. So we look at the
1:20:15subject matter. Okay. The value of the
1:20:18subject matter.
1:20:23Okay. Uh-huh. Yes, Hussein.
1:20:28>> Um, complexity of the case.
1:20:32>> The complexity of the case. How complex
1:20:34was this matter? Yes. How complex was
1:20:38the matter? Okay. Uh-huh. Somebody
1:20:59the parties
1:21:02>> uh the number of parties. Yes. The
1:21:04number of parties. Uhhuh. Dana.
1:21:26>> Uh-huh.
1:21:30>> Um, would they also look at the time and
1:21:33effort
1:21:34put in by that?
1:21:37Look at what
1:21:38>> the time and the effort. Okay.
1:21:40>> Of course. Time taken. Uh time taken. Uh
1:21:44the time taken very well. Uh we look at
1:21:47the time taken. We look at the nature
1:21:49and the importance of the matter. The
1:21:51nature of the interest of the case. How
1:21:54important was this matter to the client?
1:21:55How important was this matter? The
1:21:57complexity of course we've looked at the
1:21:59complexity. uh we look at the complexity
1:22:03uh of um of the matter. We look at the
1:22:06outcome. What are the results that were
1:22:09achieved? Because if you won this case,
1:22:11if it was complex and you won it, then
1:22:13of course you deserve something. You
1:22:14deserve to be paid a little bit higher
1:22:16than if you bangled this case and and
1:22:18you lost it. Okay? So we look at the
1:22:21complexity. uh of course we have said
1:22:24that and then we look at
1:22:26the time taken in the in the matter and
1:22:29then of course we look at the outcome of
1:22:30the case okay I've said also we look at
1:22:33the importance of this case the general
1:22:34importance of the matter okay how how
1:22:37important was this matter even to the
1:22:39client okay how important was this
1:22:41matter even to the client we look at the
1:22:44stage what stage this matter got to okay
1:22:49are you taxing because you know somebody
1:22:52some advocate has taken over or did you
1:22:54complete the matter? Okay. Did you
1:22:56finalize the matter or you left it uh
1:22:58you left it pending? Okay. We also look
1:23:01at the documents filed, the nature of
1:23:05the documents filed and the complexity
1:23:07of such of such documents. Uh we look at
1:23:10the complexity um and the nature of
1:23:13documents that were filed. Okay, we look
1:23:15at the stage and of course I've said
1:23:18that we're also going to look at the
1:23:20time that you take in dealing with this
1:23:22matter. So there's so many things that
1:23:24the court will consider all the way from
1:23:26the subject matter and its value um the
1:23:30nature of the case, the number of
1:23:31parties, the documents that have been
1:23:32filed, the complexity and uh you know
1:23:35the kind of responsibility or the
1:23:37involvement that is required of that
1:23:39advocate in that matter. Also the
1:23:40conduct of the parties, the conduct of
1:23:42the parties, how the parties conducted
1:23:44themselves in that in that trial. If a
1:23:46one party of course prolonged this
1:23:49matter or the advocate did not behave
1:23:51well, then of course that goes to affect
1:23:54their instructions fee. All right. Now
1:23:56that being said and done, that being
1:23:58said and done, I want us now to discuss
1:24:01finally the procedure of taxation.
1:24:04The procedure of taxation which I've
1:24:06already started uh discussing.
1:24:09Uh let's go there. Uh the pro taxation
1:24:12I've said you prepare the phenot
1:24:17if it is an advocate client bill of
1:24:18cost. If it is a party and party bill of
1:24:22cost you prepare the the bill of cost.
1:24:26Okay. You prepare the bill of cost if it
1:24:28is uh if it is an a party and party bill
1:24:31of cost. So let's go to my screen there.
1:24:37So I'll say that again. So we have party
1:24:39and party. It means between one party
1:24:41and the other you prepare the bill of
1:24:43cost
1:24:45and then you file it for taxation. Once
1:24:47you file it for taxation you serve it.
1:24:50Okay? You serve it upon upon the other
1:24:53party
1:24:55and then parties will file submissions.
1:24:58Parties will file submissions. After
1:25:00parties have filed submissions then the
1:25:03taxing officer shall proceed and tax.
1:25:06After it has been taxed, then a ruling
1:25:08is issued. Okay? If you're not happy
1:25:11with the ruling, you give your notice of
1:25:14objection to the taxing officer within
1:25:1614 days. The taxing officer will give
1:25:19you the reasons informing the ruling and
1:25:21then you file a reference before before
1:25:23the judge in the high court. You file a
1:25:26reference before the judge in the high
1:25:28court. And if you're still not happy
1:25:30with the decision of the judge, you seek
1:25:32leave. You seek leave to appeal to the
1:25:36court of appeal. Anyway, somebody uh
1:25:38somebody read for us. Start from 10.
1:25:41Somebody read for us from 10
1:25:4510.
1:25:49The taxing officer for the taxation of
1:25:51bills under this order shall be the
1:25:53registar or a district or deputy
1:25:55registar of high court or in the absence
1:25:58of a registra such other qualified
1:26:01officer as the chief justice may in
1:26:02writing appoint except that in respect
1:26:05of bills and as scheduled for to the
1:26:08order that to the order the tax officer
1:26:10shall be the registar of trademarks or
1:26:13any deputy or assistant registister of
1:26:16trademarks.
1:26:22Okay.
1:26:24Saw that is self-explanatory.
1:26:2711. Now the procedure starts from 11.
1:26:32>> Objection to decision on taxation and
1:26:34appeal to court of appeal. Should any
1:26:37party object to the decision of the
1:26:40taxing officer he may within 14 days
1:26:44after the decision give notice in
1:26:46writing to the taxing officer of the
1:26:48items of taxation to which he objects
1:26:53two.
1:26:53>> So let's start there. Let's start there.
1:26:55So if you object to the decision of the
1:26:57taxing officer, remember I said that
1:26:59once you file a submissions and this
1:27:01bill is taxed, the taxing officer will
1:27:04issue a ruling. That ruling will tell
1:27:06you the items. Remember our items
1:27:10instructions fee, attendances,
1:27:13draftings, perusals, filing and copies.
1:27:17So the taxing officer will issue a
1:27:20ruling on those items. So you'll be told
1:27:22the instructions fee is taxed at this,
1:27:26attendances taxed at this, copies or
1:27:29drafting taxed at this. So if you are
1:27:32not happy, if you object to the decision
1:27:34of the taxing officer, you may within 14
1:27:37days after that decision has been made
1:27:39give notice in writing to the taxing
1:27:42officer of the items of taxation which
1:27:45you are objecting to. So you tell them I
1:27:47am objecting to the taxation of the
1:27:49instructions fee. Maybe I requested for
1:27:512 million, you are now giving me 1
1:27:53million. Why? and then read two.
1:28:00>> The taxing officer shall forth with
1:28:03record and forward to the objector the
1:28:05reason for his the reasons for his
1:28:06decision on those items and the objector
1:28:10may within 14 days from the receipt of
1:28:12the reasons apply to a judge by chamber
1:28:16sermons which shall be served on all the
1:28:19parties concerned. setting out the
1:28:21grounds of his objection.
1:28:26>> Okay,
1:28:28that is very clear. Uh that the taxing
1:28:30officer shall of course immediately give
1:28:33you the reasons for their decisions.
1:28:35Okay, they will give you the reasons for
1:28:37their decisions. Okay, telling you that
1:28:40we tax this matter, we tax this matter
1:28:42at this much because of uh because of
1:28:45this.
1:28:47Okay. And then of course um once you get
1:28:50those reasons, you may object. So the
1:28:53objector that is yourself who is
1:28:55objecting may within 14 days. Okay.
1:28:58Within 14 days from the receipt of those
1:29:01reasons apply to the judge by chamber
1:29:03summons. Okay. So it means you file a
1:29:07reference before the judge by chamber
1:29:09summons. File a chamber summons telling
1:29:11the judge of course to review. You are
1:29:13asking the judge to review the taxation.
1:29:16Okay. And give us the grounds why you're
1:29:18objecting to the taxations. Okay. And
1:29:21then three,
1:29:24any person agreved by the decision of
1:29:27the judge upon any objection referred to
1:29:31upon any objection referred to such
1:29:32judge under subsection two made with the
1:29:36leave of the judge but not otherwise
1:29:38appealed to the court of appeal.
1:29:42>> Okay. That is very clear. So that
1:29:45summarizes the process. That summarizes
1:29:47the process. And what is the process
1:29:49there? The process there is that you
1:29:52will prepare your phenot
1:29:55if it is a party and party, you prepare
1:29:57your bill of cost. Once you have the
1:29:58bill of cost, you file it in court. Once
1:30:01you file it, you serve it upon the other
1:30:03party. That is your client or the other
1:30:05party. And then they will file
1:30:07submissions even you. Okay? You'll file
1:30:11submissions. why that bill should be
1:30:13taxed as it is.
1:30:16Okay. And then after that then the
1:30:19taxing officer who is the de or even the
1:30:23registra or the deputy registra of uh
1:30:26the court will proceed. Remember that
1:30:29taxation of bills happens in the high
1:30:30court.
1:30:32It happens in in the high court. So you
1:30:34file it before the registister or the
1:30:36deputy registister of the high court.
1:30:39Okay. And then once you file it there,
1:30:42once you file it there, they will
1:30:44proceed and tax it. Once they've taxed
1:30:47it, they'll issue a ruling. If you're
1:30:49not happy with that ruling, then you
1:30:51will give notice to the registister, the
1:30:53taxing officer within 14 days. Okay?
1:30:57That notice should highlight the reasons
1:31:00for your objections. The reasons for
1:31:02your objections. The notice should of
1:31:05course highlight the reasons for your
1:31:07objections.
1:31:09Are we together? The reasons for your
1:31:12objections
1:31:14and then the registra shall give you the
1:31:16reasons.
1:31:18Okay? The register shall give you the
1:31:20reasons informing the ruling.
1:31:23Are we together? And then if you are not
1:31:26happy with those reasons, then you shall
1:31:27proceed and file a reference before
1:31:29before the judge in chambers the chamber
1:31:31summon asking the judge either to I mean
1:31:35of course to review the taxation. So the
1:31:37judge once they have received that
1:31:38application of yours the cher summon
1:31:40they can uphold the taxation by saying
1:31:43this matter was taxed very well or they
1:31:46can tax it a fresh the bill of cost can
1:31:48be taxed aresh the judge can now say
1:31:51okay you given 200,000 here I think
1:31:53should be 400 the judge can add or even
1:31:55reduce and then the judge will give its
1:31:58own ruling I mean his own ruling on the
1:32:00same bill again after that after that if
1:32:05you are not happy then you have to
1:32:07appeal to the court of appeal. However,
1:32:09this is a decision that you cannot
1:32:11appeal as of right. You have to seek
1:32:13leave with the court that is a judge
1:32:15leave from court so that you can appeal
1:32:17to the court of appeal. You can appeal
1:32:19to the court of appeal. That is the
1:32:21final process of taxation of bills. And
1:32:24I think we have covered as much
1:32:47questions please.
1:32:57No sw.
1:33:08Okay. Muhammad
1:33:25We can't hear you, Mr. Muhammad, if
1:33:27you're speaking.
1:33:37Okay, Leonard.
1:33:43Okay. [clears throat]
1:33:45When you are awarded costs in the maybe
1:33:48you have won an application and you have
1:33:50been told costs in the cost and at the
1:33:53end of the matter you get to lose the
1:33:57case.
1:33:59Are you will you still be awarded the
1:34:01cost of the application or what happens
1:34:04to your cost?
1:34:05>> Yes, you still have your cost. you
1:34:06you'll have you still have your cost uh
1:34:09from the application.
1:34:11Uh if you're given cost here again you
1:34:13add on top of that if you're denied cost
1:34:16here you will uh you will um
1:34:20uh I mean you will proceed and uh you'll
1:34:22proceed and uh and uh uh and just get
1:34:25your cost in the application but if cost
1:34:27is awarded against you in the main suit
1:34:29then now we have cross uh cross bill of
1:34:32costs. It means the other person is
1:34:34paying you you're also paying them.
1:34:36Okay. So you guys will prepare your own
1:34:37bill of cost. They'll be taxed and then
1:34:40uh you'll set off. You'll set off. But
1:34:43sometimes remember that cost is set is
1:34:46this is what I fa to mention. Let me
1:34:48mention that sometime cost is already
1:34:52determined. You don't need to tax it.
1:34:54The court can say that cost is awarded
1:34:57to the plaintiff
1:34:59in the sum of 250,000. So it means you
1:35:02don't need to tax anything. Cost is
1:35:03already 250,000. So it means you can't
1:35:06go and pray for more. You only get that
1:35:08to 50. And therefore if the other
1:35:10parties awarded cost as well, you'll
1:35:12just you know it will cancel each other
1:35:14as they say.
1:35:34All right, Brian.
1:35:40>> Yes, Jack. I have a question.
1:35:44>> Are a party has been awarded cause
1:35:48but they didn't serve the demand letter
1:35:50or notice of intention to sue. Can you
1:35:54[snorts] use that ground to object to
1:35:56the cause?
1:35:59>> No. Cause is dispression by the court.
1:36:01Remember
1:36:03I remember that uh if you don't file a I
1:36:09mean a uh I mean a notice of intention
1:36:13to sue or even a demand you know it is
1:36:17it is it is it is still within the
1:36:19discretion of the court. Okay. It is
1:36:22still within the discretion of the court
1:36:23to do what? To give you or deny you
1:36:25cost. Are you together?
1:36:29>> Sure. Sure we are together.
1:36:31>> All right.
1:36:35Muhammad Harun.
1:36:40Uh there seems to be a problem on your
1:36:42side.
1:36:44We can't seem to hear you.
1:36:48Muhammad Harun. Okay.
1:36:54Muhammad Arun.
1:36:57Please unmute and speak.
1:37:03We can't hear you.
1:37:05Okay
1:37:07guys, that is the end of taxation of
1:37:09cost. Uh the only topic that we have
1:37:11remaining is tribunals. Tribunals are
1:37:14very easy and I do not want to keep you
1:37:17guys here because we're discussing
1:37:18tribunals. We are effectively done with
1:37:20civil litigation. Uh we shall be talking
1:37:23about those tribunals. There are quite a
1:37:25number that we've talked about even in
1:37:26conveyancing. The first tribunal we're
1:37:28going to talk about is the national
1:37:29environmental tribunal. That is the
1:37:31first one. Uh the second one is the TA
1:37:33that is a tax appeals tribunal. We shall
1:37:35look at that tribunal. Uh the third
1:37:37tribunal that we shall be looking at is
1:37:39the advocates disciplinary tribunal the
1:37:41ADT. We shall look at the rent tribunal.
1:37:45The rent tribunal. Okay. And then we
1:37:48shall look at the business uh the
1:37:50business premises
1:37:52uh rent tribunal that is the BPRT. Now
1:37:55there are a total of around 30 something
1:37:59tribunals but we can't look at all of
1:38:01them. We'll just look at the key ones
1:38:02that have been listed have been listed
1:38:04in the course outline. Okay. So these
1:38:07are tribunals that we can look at as we
1:38:09go. Nothing much. Just need to know how
1:38:11do you approach those tribunals? How do
1:38:13you approach uh those tribunals and then
1:38:16how do you get uh how do you appeal from
1:38:18the tribunals if you don't like the
1:38:19decision of the tribunal? How do you
1:38:21move away from uh from those tribunals?
1:38:23So I've seen the national environmental
1:38:25tribunals, the tax appeals tribunals,
1:38:27the advocates disciplinary tribunals,
1:38:29the BPRT and the the rent tribunals.
1:38:34Okay. So I hope that um wherever you go
1:38:39you shall be safe. So we start the past
1:38:41paper review effectively this Saturday.
1:38:43Uh we are going to be talking about
1:38:45every topic. Once we're done the past
1:38:47papers again we will start over from
1:38:49where we started when we first began the
1:38:52classes in July. But up to this point
1:38:54guys I'm really hoping and praying that
1:38:57the today is our
1:39:0128th class.
1:39:04Okay. Today is our 28th class. So the 28
1:39:07classes we've had for Civo have not gone
1:39:10to a waste that at least we've captured
1:39:12some few things. Now the only thing that
1:39:13is remaining is that now it is time for
1:39:15us to practically put those things that
1:39:17we've learned in uh a question. So we
1:39:21start from um the April 2025 paper uh on
1:39:27Saturday. Uh please get up for that. If
1:39:31you have a question, please don't fail
1:39:33to reach out and we shall uh we shall be
1:39:37well.
1:39:40We good question.
1:39:47>> Yes, we are.
1:39:50>> Okay. So, the recording has been
1:39:52stopped. Uh please make sure you get the
1:39:54recording now. I do not understand why
1:39:57some of you fail to get the recording
1:40:00right now. Get it right now so that you
1:40:02sleep

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