[2023] KEHC 25215 (KLR)

Cargo Service Centre East Africa BV v MFI Solutions Limited (Civil Appeal 641 of 2019) [2023] KEHC 25215 (KLR) (Civ) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25215 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 641 of 2019

AN Ongeri, J

November 10, 2023

Between

Cargo Service Centre East Africa Bv

Appellant

and

Mfi Solutions Limited

Respondent

Ruling

1. The application coming for consideration in this ruling is the reference dated 9/12/2022 filed in the bill of costs taxed on 29/11/2022.

2. The reference is based on the grounds that the taxing master erred in including the value of the subject matter yet the appeal emanated from a preliminary objection dated 24/6/2019.

3. Further that the taxing master erred in allowing items 7, 9-16 and 18-22 yet the same were not drawn to scale.

4. The applicant also stated that the disbursements were not supported by any documentation.

5. The reference is supported by the affidavit of Edith Githachuri in which she retaliated the grounds stated above.

6. The parties filed submission in the reference as follows; the appellant/applicant submitted that the taxing master erred in law by awarding Kshs. 122,400 as instruction fees. That the present appeal was brought forth as an appeal against the ruling of the trial court dismissing the Appellant’s Preliminary Objection and thus was not an appeal for the liquidated amount of Ksh 1,371,604 which was relied upon by the Taxing Master.

7. The appellant/applicant relied on the Advocates Remuneration Order, Schedule 6, Rule 1 (j) on appeals which states:(j)To present or oppose an appeal in any case not provided for above, such sum may be reasonable but not less that Ksh 25,200.

8. That the said Appeal was in relation to a Preliminary Objection thus was not complex and having due regard to the general conduct of the proceedings, we submit that a figure of Ksh. 25,200 is adequate on this head.

9. As pertains to disbursements, the appellant/applicant submitted that the Taxing Master erred in principle by granting sums that were not only never served upon the Appellants but were never filed in Court thus no supported receipts produced.

10. On the item pertaining to drafting of the Bill of Cost the appellant/applicant submitted that, the Respondent indicated drafting submissions and the service of the submissions of the Bill of Cost at an amount of Kenya Shillings One Thousand Four Hundred Shillings (Ksh 1,400) each. That however the Bill of Cost and subsequent submissions were never served upon the Applicant/Appellants and the Honourable Court ordered the Respondents to serve the same to the Applicant/Appellant during the last Court Session.

11. On court attendances the appellant/applicant submitted that the Taxing Master erred in law and principle by ruling that the same had been reasonably drawn to scale as per the ruling and thus we vehemently oppose the amount listed as Court Attendances as the same is a contravention of the Rules under the Advocates Remuneration Order on Schedule 6, Rule 7 (d) and submitted that the attendance should be taxed as below;Attendance Date Reason Amount

13/04/21 Mention Ksh 1,100

29/04/21 Mention Ksh 1,100

9/06/21 Mention Ksh 1,100

6/07/21 Mention Ksh 1,100

27/09/21 Highlighting of submissions Ksh 1,100

10/11/21 Mention Ksh 1,100

28/4/22 Judgment Ksh 1,100

13/10/22 Mention Ksh 1,100

10/11/2020 Mention Ksh 1,100

TOTAL

Ksh 9,900

12. The respondent submitted that its bill of costs dated 29th July2022 was taxed within the law. On the issue of instructing fees the respondent submitted that the taxing master did not error in principle when she determined the value of the subject matter of Kshs 1,371,604 from the pleadings filed in the lower court CMCC No. 5760 of 2014 as the appeal rose from the claim filed in the lower court and the preliminary objection’s aim was to dismiss the claim.

13. The respondent submitted that it is absurd for the appellant to claim that the bill of cost was not served upon them yet an extract from the e filing portal shows proof of the same. It was the respondent’s submission therefore that the application herein was brought in bad faith with the intention to deny the respondent the fruits of its judgement and drag the in unending litigation.

14. The issues for determination in this reference are as follows;i.Whether the taxing master was right in referring to the value of the subject matter yet the appeal emanated from a preliminary objection.ii.Whether the contested items were drawn to scale.iii.Whether the taxing master was right in allowing disbursements without support documents.

15. On the issue as to whether the taxing master erred in referring to the value of the subject matter, I find that even though the appeal emanated from a preliminary objection, the purpose of the preliminary objection was to dispose of the entire suit and therefore the Taxing Master was right in basing the instruction fees on the value of the subject matter.

16. The law requires that the value of the subject matter is the basis for granting instruction fees and the same has to be ascertained from the pleadings. In Joreth Limited vs Kigano & Associates [2002] eKLR, it was held that;“We would at this stage, point out that the value of the subject matter of a suit for the purposes of taxation of a bill of costs ought to be determined from the pleadings, judgment or settlement (if such be the case) but if the same is not ascertainable the taxing officer is entitled to use his discretion to assess Instruction fee as he considers just, taking into account, amongst other matters, the nature and importance of the cause or matter, the interest of the parties, the general conduct of the proceedings, and direction by the trial judge and all other relevant circumstances.”

17. If the value of the subject matter cannot be ascertained the taxing officer is allowed to apply his discretion in awarding the instruction fees taking into account certain elements this was highlighted in Joreth Ltd v Kigano & Associates (supra).

18. I find that the taxing officer was right in referring to the value of the subject matter.

19. On the issue as to whether all the items were drawn to scale, I have perused the contested items and I find that they were all drawn to scale.

20. On the issue as to whether the disbursements were supported by documentation, I find that the taxing master noted in the ruling that the items on disbursements were drawn to scale and supported by receipts.

21. I find that this reference lacks in merit and the same is dismissed with no orders as to costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 10TH DAY OF NOVEMBER, 2023. ....................A. N. ONGERIJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondent