[2022] KEHC 26964 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW DIVISION

JUDICIAL REVIEW MISC. APPLICATION NO. E055 OF 2021

ANDREW KANARI RUINGORA (Suing As the Personal Rep of The Estate of

TERESIA MUKAMI KANARI (DECEASED)…………..……………...........APPLICANT

VERSUS

GACHOKA MWANGI ADVOCATES.........................................................RESPONDENT

(Being an application against the decision of Senior Deputy Registrar Hon. C.A. Muchoki dated 25th February,2021)

Arising from

MISCELLANEOUS CIVIL APPLICATION NO.19 OF 2019

GACHOKA MWANGI ADVOCATES...................................................................................................APPLICANT

VERSUS

ANDREW KANARI RUINGORA (Suing as the Personal Rep of the Estate of

TERESIA MUKAMI KANARI (DECEASED)................................................................................ RESPONDENT

RULING

1. The application before this court is the one dated 9th April,2021 seeking a raft of orders as reproduced below;

i. The Honourable court be pleased to set aside the decision of the Senior Deputy Registrar Hon. Muchoki delivered on 16th March, 2021 (hereinafter referred to as the ruling) to the extent that it related to the reasoning and determination pertaining to items no.1 whose calculations arrived at Kshs. 80,666. 40/= in the Advocate/ Client bill of costs dated 22nd November, 2019.

ii. This Honourable court be pleased to re-assess the fees due on the aforesaid items of the advocates in respect of the Bill of Costs and make findings on the same.

iii. In the alternative and without prejudice to the foregoing, this honourable court be pleased to remit the aforementioned item of the bill of costs to another taxing officer for review and reconsideration with direction on taxation.

iv. The costs of this application be awarded to the Applicants advocates.

2. The application is supported by the grounds on its face and a supporting affidavit dated 9th April,2021 sworn by Namada Simoni, an advocate of the High Court representing the Applicant/ Respondent in this matter.

3. A brief background of the facts is that Andrew Kanairi Ruingora (hereinafter the Applicant) instructed Gachoka Mwangi Advocates (hereinafter the Respondent) to file a petition for a limited grant where the expected value of the estate was Kshs. 500,000/=. The Respondent herein it was averred claimed a fee of Kshs. 25,200/= which will hereinafter be referred to as Item 1.

4. It was deposed that parties had agreed to have fees charged at 30% and not at an hourly rate as charged by Respondent. Further, that a bill of costs was served upon the Applicant, which bill was filed under Misc. Application no. 19 of 2019 and not Misc. App No.39 of 2019 where a ruling had been delivered.

5. The taxing master taxed the said bill on 16th March,2021 awarding a higher instruction fees on item 1. The deponent contended that the taxing officer in her Ruling relied on the wrong provision of the law and proceeded to award Kshs. 45,000/= which was more than what the Respondent had claimed.

6. The Applicant also filed written submissions dated 20th May,2021. In the submissions learned counsel identified 2 issues for determination. That is whether the application dated 9th April,2021, is merited and who should bear the costs of the suit.

7. On the first issue counsel submitted that section 3 of the Administrative Action Act No.4 of 2015 and section 25 of the Civil Procedure Act emphasis on the need to give reasons for a decision reached in the course of a judicial process. To support this argument counsel cited the case of K Mberia & Partners Advocates v. Property Reality Limited [2018] eKLR.

8. Learned counsel submitted that the taxing master did not give clear reasons for the said award yet the matter was a straight forward one nor did she explain why she did not rely on Schedule 10 of the Advocates Remuneration Order. It was contended that the taxing master erred for not taking into account the complexity of the matter as was held in the case of Mutuli & Apolo Advocates v. Hon. Cyrus Jirongo [2010] eKLR. Counsel also cited the case of Kipkorir Titoo & Kiara Advocates v. Deposit Protection Fund Board [2005] eKLR on the court’s discretion to either re-asses the fees due in the Bill of costs or remit the bill to another taxing officer for review.

9. The Respondent also filed a reply dated 21st June 2021, in which learned counsel contended that the mere fact that the taxing master was guided by the minimum prescribed in the Advocates Remuneration Order Amendment No.2 of 2014 and the fact that it had proposed Kshs. 25,000/= did not tie the taxing master’s hands.

10. Further, learned counsel submitted that to fault the taxing master in the case before this court would mean the court should follow mistakes made by advocates where the advocate is not aware of the minimum amount prescribed. In addition, it was contended that despite enhancing the instruction fees the taxing master did not agree with the bill of costs in many of the other items and that she completely taxed off items 2,3,4,5 and 10. In conclusion it was argued that the amount awarded was modest and within the range expected for handling such matters.

Analysis and Determination

11. I have considered the application and parties’ submissions. The main issues for determination are whether the decision of the Taxing Master dated 25th February 2021 should be set aside and, if in the affirmative, whether the bill should be re assessed by this court or in the alternative remitted to a different Taxing master for re assessment.

12. The Applicant is disputing item no.1 and calculations arriving at the sum of Kshs. 250,692. 24/= on the ground that the Taxing Officer erred in principle in awarding higher instruction fees despite the matter being a declaratory suit that was straightforward with no complex issues. Secondly, that the Taxing Officer misdirected herself and acted contrary to the established principles by failing to calculate the total costs of the bill as provided for in the Advocates Remuneration Order, Schedule 7-part B. Lastly, that the taxing officer erred in law by failing to apply the applicable principles and taxed the bill contrary to the applicable schedule 7 provided for in the Advocates Remuneration Order.

13. In Republic v Ministry of Agriculture & 20 Others Ex-Parte Muchiri W’ Njuguna [2006] eKLR, Hon. Justice J.B. Ojwang (Retired) stated as follows: -

“The taxation of costs is not a mathematical exercise; it is entirely a matter of opinion based on experience. A Court will not, therefore, interfere with the award of a taxing officer, particularly where he is an officer of great experience, merely because it thinks the award somewhat too high or too low; it will only interfere if it thinks the award so high or so low as to amount to an injustice to one party or the other…. The court cannot interfere with the taxing officer’s decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was manifestly excessive as to justify an interference that it was based on an error of principle.” [Emphasis mine]

14. From the foregoing it is obvious that before the court can interfere with the decision of the taxing master it must be satisfied that the taxing master’s ruling was clearly wrong. This means that the court will not interfere with the decision of the taxing master in every case where its view of the matter in dispute differs from that of the taxing master, but only when it is satisfied that the taxing master’s view of the matter differs so materially from its own that it should be held to vitiate the ruling.

15. I note that the ruling of the Taxing Master has not been annexed either to the affidavit in support of the application or to the submissions neither are any reasons for the taxation availed to the court. These reasons need not be formal reasons requested of the Taxing Master. Where the reasons are apparent from the decision, that should suffice.

16. Odunga J, in Evans Thiga Gaturu Advocate vs Kenya Commercial Bank Limited [2012] eKLR, held that:

“It is therefore clear that the interpretation by the court especially the High Court on this issue is far and varied. In my view, where no reasons appear on the face of the decision of the taxing master, it is only prudent that such reasons be furnished in order for the judge to make an informed decision as to whether or not the discretion of the taxing master was exercised on sound legal principles.

However, where there are reasons on the face of the decisions, it would be futile to expect the taxing officer to furnish further reasons. The sufficiency or otherwise is not necessarily a bar to the filing of a reference since that insufficiency may be the very reason for preferring a reference”.

17. In the foregoing, I find that there being no reasons attached, either in the form of the decision of the Taxing Master or formal reasons given on request, the application herein is incompetent and is therefore struck out with no orders as to costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 3RD DAY MARCH, 2022.

___________________________________

A. K. NDUNG'U

JUDGE