[2021] KEHC 3173 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

(Coram: Odunga, J)

MISCELLANEOUS (REFERENCE) APPLICATION NO. E21 OF 2020

ADVOCATES (REMUNERATION) (AMENDMENT) ORDER, 2014

ARISING FROM

THE CLIENT’S INSTRUCTIONS TO PURSUE AN OUT-OF-

COURT SETTLEMENT IN A DEBT COLLECTION MATTER

AND/OR TAX RETURNS DISPUTE BETWEEN THE KENYA REVENUE

AUTHORITY (KRA) AND ZHONG GANG BUILDING MATERIAL COMPANY LIMITED

IN THE MATTER OF

DK LAW ADVOCATES................................APPLICANT/ADVOCATE

-VERSUS-

ZHONG GANG

BUILDING MATERIAL CO. LTD.................DEFENDANT/CLIENT

YUANYUAN ZHENG ZHONGLIN...............DEFENDANT/CLIENT

RULING

1. This ruling arises from a taxation by Hon. E. Analo. By his decision dated 31st March, 2021, the Learned Taxing Officer taxed the Advocate/Applicant’s costs in the total sum of Kshs 116,000/=.

2. Aggrieved by the said decision, the Advocate lodged this reference vide Chamber Summons dated 12th April, 2021 on 14th April, 2021, seeking an order that the said decision with respect to items 1 and 2 on instructions fees and client-advocate costs (halved) in the Bill of Costs dated 23rd October, 202 be set aside and taxed afresh by this Court. The summons were premised on the grounds that the said award is extremely low in the circumstances of the matter and is not commensurate with the work done; that the learned Taxing Officer erred in law by failing to take note that the Advocate had fully discharged the instructions as per the supporting documents provided; that the Learned Taxing Officer underestimated the work done by the Advocate on behalf of the Respondent thus arriving at a manifestly low award; that the Learned Taxing Officer misapplied the law and principles of taxation, thereby arriving at a wrong decision; that the Learned Taxing Officer failed to appreciate the complexity of the matter, industry put, time taken and work done; that the award contradicts the spirit and principle of the Advocates Remuneration Order with regard to fair and reasonable remuneration of advocates; that the Learned Taxing Officer misdirected himself in taxing instructions fees under item 1 at Kshs 100,000. 00; that there was an error in principle on the part of the Learned Taxing Officer in taxing off item 2 in its entirety; that the Learned Taxing Officer misdirected himself by failing to provide for the costs of the application.

3. According to the supporting affidavit the Advocate was instructed by the clients regarding a complaint lodged against the Clients as regards non-payment of taxes. Consequently, the advocate visited the KRA offices and held bi-weekly meetings with the Clients. According to the Advocate the value of the subject matter was in excess of Kshs 304,232,595. 41. It was averred that the Advocates fast-tracked the dispute and resolved all the issues as instructed and sent a final report on 5th May, 2019. Following the Advocate’s intervention, it was averred that KRA compromised the matter at Kshs 5,000,000. 00 and the Clients undertook to settle the Advocate’s but subsequently failed to honour the same necessitating the filing of the Bill dated 23rd October, 2020.

4. The Advocate therefore averred that he is entitled to full fees as well as the costs of the taxation.

5. In response to the Summons, the Clients filed a Notice of Preliminary Objection contending that this Court lacks the jurisdiction to entertain this matter as the same is res judicata. It is alleged that as per the decision of the Learned Taxing Officer, the Clients have already paid the Advocate Kshs 116,000/-as ordered by the Court, which monies the Advocate received and withdrew thus determining the matter.

6. Although it was indicated that the Clients filed their submissions, there are no such submissions on record and despite this Court reminding the Clients to comply with its directions and furnish the soft copies as directed, the Clients did not respond.

7. In opposition to the preliminary objection, it was submitted that on behalf of the Clients that the grounds upon which the said objection is grounded do not meet the threshold of res judicata.

8. In support of the reference it was submitted that from the proceedings before the lower Court, there is no dispute on whether the Respondents instructed the Applicant to take over the conduct of the matter on their behalf. Upon receipt of the instructions from the Respondents, the Applicant took decisive steps towards executing the same. The applicant avers that they held several meetings with Kenya Revenue Authority. Based on the outcome of the said meetings, the Applicant sent the Respondents an Interim Report advising them (the Respondents) on the way forward in settling the dispute amicably. On account of Interim Report, the Respondents and the Applicant agreed to hold bi-weekly physical meetings to fast-track the settlement of the matter, which meetings were held until the dispute was settled.

9. It was contended that after making reasonable progress, the Applicant in the company of the Respondents visited Kenya Revenue Authority (KRA) offices in Machakos for the high-level and critical meeting meant for ironing out all issues germane to the tax evasion indictment on the Respondents, a visit is captioned by either party in their respective Affidavits. After a series of negotiations between the Applicant (on behalf of the Respondents) and the KRA, a compromise settlement of Kshs. 5,000,000. 00 was reached and the Applicant sent the Respondents a Final Report to that effect highlighting diverse issues arising from the settlement. Thereafter, the Respondents paid Kshs. 5,000,000. 00 to the KRA at the rates of Kshs. 2,500,000. 00 for Income Tax and Kshs. 2,500,000. 00 for VAT and the matter was closed. In the said final report, it was averred, the applicant detailed the agreed settlement with KRA on various issues including taxes on PAYE, directors’ returns, undeclared incomes from quarry, Directors Lifestyle, undisclosed Assets among others.

10. It was noted that in the proceedings before the Learned Taxing Officer, the fact that the Applicant conducted a series of meetings with the Respondents and sent out several advisory reports until the dispute was resolved was an uncontested one. In these circumstances, the Advocate wondered why he was denied full instructions fees based on the sums pleaded in the Bill of Costs dated 23rd October, 2020 for having received instructions from the Respondents and executing them fully.

11. According to the Advocate, the Learned Taxing Officer failed to appreciate the value of subject matter, its complexity, industry put, time taken on the matter and work done by the Applicant, thus arriving at a manifestly low, unfair and unreasonable award. In this regard, the Advocate relied on Karen & Associates Advocates vs. Caroline Wangari Njoroge [2019] eKLR, in which the Court relied on the decision of the Court in Ochieng, Onyango, Kibet and Ohaga Advocates vs. Adopt Light Ltd. HC Misc 729 of 2006.

12. It was submitted that from the Applicant’s Bill of Costs dated 23rd October, 2020 and the accompanying documents, the amounts that were subject to the tax row, that in turn formed the basis of the Applicant’s Bill of Costs and the immediate Reference. According to the Advocate, from the Applicant’s Bundle of Documents and Annexures, it will be noted that the matter was extremely complex and entailed the perusal of copious documents coupled with the preparation of the necessary reports and regular client meetings, an inordinately time-consuming exercise. As such, the Applicant invested a great deal of industry and time in the culmination of a compromise settlement.

13. In the Advocates view, the award of Kshs. 116, 000. 00 is excessively low and does not amount to fair remuneration commensurate to the work done by the Applicant.

14. It was submitted that in his Ruling dated 31st March, 2021, the Learned Taxing Officer failed to judiciously exercise the discretion vested in him for the purpose of determining the Applicant’s instructions fees. It was argued that as a long-standing principle of taxation, the Court ought to interfere with a taxation award if it is established that the Taxing Officer did not exercise his or her discretion judiciously and reliance was placed on Karen & Associates Advocates vs. Caroline Wangari Njoroge [2019] eKLR, in which the Court relied on the decision of the Court in Ochieng, Onyango, Kibet and Ohaga Advocates vs. Adopt Light Ltd. HC Misc 729 of 2006.

15. In this Reference, it was argued that the Learned Taxing Officer misapplied his discretion by failing to appreciate the value of subject matter, its complexity, industry put and time taken on the matter, so as to arrive at a fair remuneration that is commensurate to the work done by the Applicant. According to the Applicant, it took almost Three (3) months for the Applicant to negotiate and reach an out of court settlement with KRA on behalf of the respondent clients. This can be easily discerned from the date of instruction 2nd February 2019. They continuously held bi-weekly physical meetings with the respondent clients. Additionally, the matter involved analysis of annual financial reports, Books of accounts and Bank statements of at-least Ten (10) different bank statements and this demonstrates the importance and complexity of the subject matter dispute.

16. It was therefore urged that the totality of the evidence before the Court irresistibly leads to the conclusion that sufficient grounds have been established upon which this Court can stand on and disturb the decision of the Learned Taxing Officer. It was therefore sought that the Reference dated 12th April be allowed with costs to the Applicant/Advocate.

Determinations

17. I have considered the foregoing and this is the view I form of the matter.

18. The first issue for determination is whether the acceptance of the amount taxed by the Taxing Officer bars the Applicant from lodging this reference.

19. A not too dissimilar issue arose before the Court of Appeal in Machakos District Co-Operative Ltd. vs. Nzuki Kiilu Civil Application No. Nai 17 of 1997 where it was argued that since the decretal sum had been paid, the right of appeal had been lost. The Court (Shah, JA) however had no hesitation in holding that the fact that the decretal sum has been paid does not deprive a party of the right of appeal. It was however contended that the payment of the taxed costs amounted to accord and satisfaction. In a layman’s language an accord and satisfaction is a compromise with something in it for both sides; It is the purchase of a release from an obligation whether under contract or tort by means of any valuable consideration not being the actual performance of the obligation itself. The accord is the agreement by which the obligation is discharged. The satisfaction is the consideration, which makes the agreement operative. See British Russian Gazette and Trade Outlook Ltd. vs. Associated Newspapers Ltd. (1932) KB 66.

20. What I understand is that for the principle to apply the person obliged to satisfy an obligation must give something to the other party which though not the debt owed, is taken by that other to be in satisfaction of the debt. In other words, the principle operates to bar the creditor who has accepted the payment from making further claims against the debtor.

21. The Supreme Court of Uganda (Odoki, JSC) in Rukidi vs. Iguru and Another [1995-1998] 2 EA 318 however, expressed itself as hereunder:

“Any party is free to pursue his rights irrespective of whatever intervening events have taken place since the court is entitled to pronounce on the rights of the parties.”

22. It is therefore my view that the fact that the Applicant received the amount taxed does not bar him from pursuing the reference if, in his view, the amount taxed was inordinately low. Consequently, I find no merit in the preliminary objection which I hereby dismiss.

23. The circumstances under which a Judge of the High Court interferes with the taxing officer’s exercise of discretion are now well known. These principles are, (1) that 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 inference that it was based on an error of principle; (2) it would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors and, according to the Order itself, some of the relevant factors to be taken into account include the nature and the importance of the cause or matter, the amount or value of the subject matter involved, the interest of the parties, the general conduct of the proceedings and any direction by the trial judge; (3) if the Court considers that the decision of the Taxing Officer discloses errors of principle, the normal practise is to remit it back to the taxing officer for reassessment unless the Judge is satisfied that the error cannot materially have affected the assessment and the Court is not entitled to upset a taxation because in its opinion, the amount awarded was high; (4) it is within the discretion of the Taxing Officer to increase or reduce the instruction fees and the amount of the increase or reduction is discretionary; (5) the Taxing Officer must set out the basic fee before venturing to consider whether to increase or reduce it; (6) the full instruction fees to defend a suit are earned the moment a defence has been filed and the subsequent progress of the matter is irrelevant to that item of fees; (7) the mere fact that the defendant does research before filing a defence and then puts a defence informed of such research is not necessarily indicative of the complexity of the matter as it may well be indicative of the advocate’s unfamiliarity with basic principles of law and such unfamiliarity should not be turned into an advantage against the adversary. These principles were stated in the case of First American Bank of Kenya vs. Shah and Others [2002] 1 EA 64.

24. The position was reiterated in Karen & Associates Advocates vs. Caroline Wangari Njoroge [2019] eKLR, in which the Court cited the decision of the Court in Ochieng, Onyango, Kibet and Ohaga Advocates vs. Adopt Light Ltd. HC Misc 729 of 2006 where the court stated that;

“…The taxing master must consider the case and the labour required in the matter, the nature or importance of the matter more so the amount or value of the subject matter involved, the interest of the client in sustaining or losing a brief and the complexity of the dispute. In assessing an amount commensurate to the work undertaken, it is of fundamental importance to consider the value of the subject…”

25. In the same case, it was held that:

“The law gives the taxing master some leeway but like all discretions, it must be exercised judicially and in line to the material presented before court.”

26. Further it has been held that the Court should interfere with the decision of the Taxing Officer where there has been an error in principle but should not do so in questions solely of quantum as that is an area where the Taxing Officer is more experienced and therefore more apt to the job; the court will intervene only in exceptional cases and multiplication factors should not be considered when assessing costs by the Taxing Officer or even the Judge on appeal; the costs should not be allowed to rise to such level as to confine access to court to the wealthy; a successful litigant ought to be fairly reimbursed for the costs he had to incur in the case; the general level of remuneration of Advocates must be such as to attract recruits to the profession; so far as practicable there should be consistency in the awards made; every case must be decided on its own merit and in every variable degree, the value of the suit property may be taken into account; the instructions fees ought to take into account the amount of work done by the advocate, and where relevant, the subject matter of the suit as well as the prevailing economic conditions; one must envisage a hypothetical counsel capable of conducting the particular case effectively but unable or unwilling to insist on the particular high fee sometimes demanded by counsel of pre-eminent reputation; then one must know that what fee this hypothetical character would be content to take on the brief; clearly it is important that advocates should be well motivated but it is also in the public interest that cost be kept to a reasonable level so that justice is not put beyond the reach of poor litigants.

27. Further guidance if necessary may be obtained in the case of Joreth Limited vs. Kigano & Associates [2002] 1 EA 92 at 99 where the Court of Appeal held that the value of the subject matter for the purposes of taxation of a bill of costs ought to be determined from the pleadings, judgement or settlement (if such be the case) but if the same is not so ascertainable the Taxing Officer is entitled to use his discretion to assess such instruction fee as he considers just, taking into account, amongst other matters, the nature and the importance of the cause or matter, the interest of the parties, the general conduct of the proceedings, any direction by the trial judge and all other relevant circumstances. It is not really in the province of a Judge to re-tax the bill. If the Judge comes to the conclusion that the taxing officer has erred in principle, he should refer the bill back for taxation by the same or another taxing officer with appropriate directions on how it should be done. The Judge ought not to interfere with the assessment of costs by the Taxing Officer unless the officer has misdirected himself on a matter of principle. In principle the instruction fee is an independent and static item, is charged once only and is not affected or determined by the stage the suit has reached. The Taxing Officer whilst taxing his bill of costs is carrying out his functions as such only. He is an officer of the Superior court appointed to tax bills of costs.

28. In Republic vs. Minister for Agriculture & 2 Others ex parte Samuel Muchiri W’njuguna(supra) Ojwang, J (as he then was) expressed himself inter aliaas 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 inference that it was based on an error of principle. Of course it would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors. And according to the Advocates (Remuneration) Order itself, some of the relevant factors to take into account include the nature and importance of the case or matter, the amount or value of the subject matter involved, the interest of the parties, the general conduct of the proceedings and any direction by the trial judge. Needless to state not all the above factors may exist in any given case and it is therefore open to the taxing officer to consider only such factors as may exist in the actual case before him. If the court considers that the decision of the taxing officer discloses errors of principle, the normal practice is to remit it back to the taxing officer for reassessment unless the Judge is satisfied that the error cannot materially have affected the assessment…A taxing officer does not arrive at a figure by multiplying the scale fee, but places what he considers a fair value upon the work and responsibility involved…Since costs are the ultimate expression of essential liabilities attendant on the litigation event, they cannot be served out without either a specific statement of the authorising clause in the law, or a particularised justification of the mode of exercise of any discretion provided for…The complex elements in the proceedings which guide the exercise of the taxing officer’s discretion, must be specified cogently and with conviction. The nature of the forensic responsibility placed upon counsel, when they prosecute the substantive proceedings, must be described with specificity. If novelty is involved in the main proceedings, the nature of it must be identified and set out in a conscientious mode. If the conduct of the proceedings necessitated the deployment of a considerable amount of industry and was inordinately time-consuming, the details of such a situation must be set out in a clear manner. If large volumes of documentation had to be classified, assessed and simplified, the details of such initiative by counsel must be specifically indicated – apart, of course, from the need to show if such works have not already been provided for under a different head of costs…”

29. While remitting the matter for fresh taxation the learned Judge in the above matter gave the following guidelines:

1 the proceedings in question were purely public-law proceedings and are to be considered entirely free of any private-business arrangements or earnings of the tea production sector;

2 the taxation of advocates’ instruction fees is to seek no more and no less than reasonable compensation for professional work done;

3 the taxation of advocates’ instruction fees should avoid any prospect of unjust enrichment, for any particular party or parties;

4 so far as apposite, comparability should be applied in the assessment of advocate’s instruction fees;

5 objectivity is to be sought, when applying loose-textures criteria in the taxation of costs;

6 where complexity of proceedings is a relevant factor, firstly, the specific elements of the same are to be judged on the basis of the express or implied recognition and mode of treatment by the trial judge;

7 where responsibility borne by advocates is taken into account, its nature is to be specified;

8 where novelty is taken into account, its nature is to be clarified;

9 where account is taken of time spent, research done, skill deployed by counsel, the pertinent details are to be set out in summarised form.

30. I wish to add that the Taxing Officer ought to disclose what informed the decision to tax the costs in one way as opposed to another. I therefore agree with the decision in Republic -vs- Minister for Agriculture & 2 Others Ex-Parte Samuel Muchiri W’njuguna & 6 Others (2006) eKLR that:

“… It is necessary to ascertain how she arrived at that figure; for although the judicial review applicant’s firm position is that it was an exercise of lawful discretion which therefore, this court should uphold, the correct perception of the discretion donated by law, I believe, is that such a discretion is only duly exercised when it is guided by transparent, regular, reliable and just criteria…”

31. And that:

“…it was necessary to specify clearly and candidly how she exercised her discretion… it is not enough to set by attributing to oneself discretion originating from legal provision and thereafter merely cite wonted rubrics under which that discretion may be exercised, as if these by themselves could permit of assignment of mystical figures of taxed costs…complex elements in the proceedings which guide the exercise of the taxing officer’s discretion must be specified cogently and with conviction…if novelty is involved in the main proceedings the nature of it must be identified and set out in a conscientious mode….if the conduct of the proceedings necessitated the deployment of a considerable amount of industry and was inordinately time consuming, the details of such a situation must be set out in a clear manner…”

32. In his ruling the learned Taxing Officer noted that there was no clear documentation as to the nature of the advocate performed, but appreciated that he expended some time on the brief which may have included perusal of various documents, doing some legal research, preparation of reports if any and general correspondence with his client among others. He noted that the Respondent admitted that the Applicant escorted him to the KRA offices at Machakos only to be turned away. It was on that basis that the Learned Taxing master, while relying on Schedule V of the Advocates Remuneration Order exercised his discretion and warded Kshs 100,000. 00 as instructions fees.

33. As was held in First American Bank of Kenya vs. Shah and Others [2002] 1 EA 64, the Taxing Officer must set out the basic fee before venturing to consider whether to increase or reduce it. In Opa Pharmacy Ltd vs. Howse & Mcgeorge Ltd Kampala HCMA No. 13 of 1970 (HCU) [1972] EA 233, it was held:

“Whereas the taxing officer is given discretion of taking into account other fees and allowances to an advocate in respect of the work to which instructions fees apply, the nature and importance of the case, the amount involved, the interest of the parties, general conduct of the proceedings and all other relevant circumstances and taking any of these into consideration, may therefore increase the instruction fees, the taxing officer, in this case gave no reason whatsoever for doubling the instruction fee. Had the taxing officer given his reasons at least there would be known the reason for the inflation. As it is he has denied the appellant a reason for his choice of the figure, with the result that it is impossible to say what was in the taxing officer’s mind. The failure to give any reason for the choice, surely, must, therefore, amount to an arbitrary determination of the figure and is not a judicial exercise of one’s discretion.”

34. The principles guiding taxation were similarly reiterated by the Court of Appeal of Uganda in Makula International vs. Cardinal Nsubuga & Another [1982] HCB 11 where the Court pronounced itself as follows:

“The taxing officer should, in taxing a bill, first find the appropriate scale fee in schedule VI, and then consider whether the basic fee should be increased or reduced. He must give reasons for deciding that the basic fee should be increased or decreased. When he has decided that the scale should be exceeded, he does not arrive at a figure which he awards by multiplying the scale fee by a multiplication factor, but places what he considers a fair value upon the work or responsibility involved. Lastly, he taxes the instruction fee, either by awarding the basic fee or by increasing or decreasing it.”

35. In the case of Paul Ssemogerere & Olum vs. Attorney General- Civil Application No.5 of 2001 [unreported] the Court held:

“In our view, there is no formula by which to calculate the instruction fee. The exerciseis an intricate balancing act whereby the taxing officer has to mentally weigh the diverse general principles applicable, which sometimes, are against one another in order to arrive at the reasonable fee. Thus while the taxing officer has to keep in mind that the successful party must be reimbursed expenses reasonably incurred due to the litigation, and that advocates, remuneration should be at such level as to attract recruits into the legal profession, he has to balance that with his duty to the public not to allow costs to be so hiked that courts would remain accessible to only the wealthy. Also while the taxing officer is to maintain consistency in the level of costs, it is settled that he has to make allowance for the fall, if any, in the value of money. It is because of consideration for this intricate balancing exercise that taxing officer's opinion on what is the reasonable fee, is not to be interfered with lightly. There has to be a compelling reason to justify such interference.”

36. In Danson Mutuku Muema vs. Julius Muthoka Muema & Others Machakos High Court Civil Appeal No. 6 of 1991 which was cited in Republic vs. Ministry of Agriculture & 2 others Ex parte Muchiri W’njuguna & 6 Others (supra) Mwera, J (as he then was) held that whereas the Court was entirely right to give the costs within its discretion, the amount allowed being ten times the sum provided for, the Court did not think the said sum was reasonable and found that it was definitely excessive as opposed to three or four times. The Court further found that since the Taxing Officer was bound to give reasons for exercising his discretion and as none were given in his ruling save to say that he simply exercised his discretion, it was just and fair to set aside the sum he allowed.

37. This Court is aware that in Butt & Another vs. Sifuna T/A Sifuna & Company Advocates Civil Appeal No. 45 of 2005 [2009] KLR 427, the Court of Appeal while appreciating that the basic instructions fees was Kshs 9,000. 00 in a winding up petition nevertheless awarded Kshs 150,000. 00 in respect of instructions fees which was 17 times the basic instructions fees.

38. In Kenya Union of Commercial Food & Allied Workers (K) vs. Banking Insurance & Finance Union (K) Civil Appeal No. 60 of 1988, instructions fees was taxed downwards from Kshs 1,000,000. 00 to Kshs 150,000. 00 where leave to apply for judicial review proceedings was disallowed. That decision was based on the old Remuneration Order.

39. It would seem that at the end of the day what weighed heavily on the mind of the Taxing Officer was that no evidence was placed before him on the basis of which he could justify the fees that were being claimed by the Applicant. He however relied on Schedule V of the said Order. Under that Schedule, there are two ways of calculating fees. In Part I of the said schedule an advocate may charge his fees at such hourly rate or rates as may be agreed with his client from time to time. In Part II thereof, it is stated that:

Such fee for instructions as, having regard to the care and labour required, the number and length of the papers to be perused, the nature or importance of the matter, the amount or value of the subject matter involved, the interest of the parties, complexity of the matter and all other circumstances the case, may be fair and reasonable, but so that due allowances shall be given in the instruction fees for other charges raised under this Schedule.

40. In this case the Applicant, in his letter dated 2nd February, 2019 stated that the legal fees would be the equivalent of 7. 5% of the gross amount in dispute. According to the Applicant the gross amount was 304,232,595. 41. The Respondent on the other hand contends that the amount in dispute was Kshs 29,699,316. 00. In the absence of an agreed value of the subject matter, I resort to the position adopted in the case of Joreth Limited vs. Kigano & Associates [2002] 1 EA 92 at 99 where the Court of Appeal held that the value of the subject matter for the purposes of taxation of a bill of costs ought to be determined from the pleadings, judgement or settlement (if such be the case) but if the same is not so ascertainable the Taxing Officer is entitled to use his discretion to assess such instruction fee as he considers just, taking into account, amongst other matters, the nature and the importance of the cause or matter, the interest of the parties, the general conduct of the proceedings, any direction by the trial judge and all other relevant circumstances.

41. It is not in doubt that the matter was settled in the sum of Kshs 5,000,000. 00. Going by the contents of the Applicants which seems not to have been contested the Applicant was, pursuant to Part I of schedule V of the said Order entitled to 7. 5% of Kshs 5,000,000. 00 which is Kshs 375,000. 00. The addition of 50% if however, provided in Part B of Schedule VI. Part V does not provide for the same.

42. Based on the foregoing, I hereby set aside the decision of the Taxing Officer made on 31st March, 2021 and substitute therefor a sum of Kshs 375,000/=.

43. Each party to bear own costs and it is so ordered.

READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 13TH OCTOBER, 2021.

G V ODUNGA

JUDGE

In the presence of:

Mr Muteti for the Applicant

Miss Ooga for the Respondent

CA Susan