[2023] KEHC 26348 (KLR)

Gaturu v Maina (Miscellaneous Civil Application 213 of 2020) [2023] KEHC 26348 (KLR) (Civ) (5 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26348 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Civil Application 213 of 2020

CW Meoli, J

December 5, 2023

Between

Evans Thiga Gaturu Advocate

Applicant

and

James Kimani Maina

Respondent

Ruling

1. For determination is the chamber summons dated 18. 05. 2021 by Evans Thiga Gaturu Advocate (hereafter the Applicant) seeking inter alia that the decision of the taxing officer delivered on 22. 04. 2021 be set aside; that in the alternative the decision of the taxing officer on Items 1, 37, 38, 52, 79, 89, 90, 103, 183, 187, 197, 222, 252, 253, 254 and 255 of the Advocates-Client Bill of Costs dated 10. 06. 2020 be set aside; and that the Advocates-Client Bill of Costs be remitted for taxation afresh on Items 1, 37, 38, 52, 79, 89, 90, 103, 183, 187, 197, 222, 252, 253, 254 and 255 before a different taxing officer, with the appropriate directions. The summons is expressed to be brought under Paragraph 11 of the Advocates Remuneration Order, on grounds on the face of the thereof as amplified in the supporting affidavit sworn by Evans Thiga Gaturu, counsel for the Applicant.

2. The gist of counsel’s affidavit is that the taxing officer erred in fact and in law in converting an Advocates-Client Bill of Costs under Schedule 6 of the Advocates Remuneration Order to a Party and Party Bill of Costs thus denying him justly earned legal fees. He thus contends that it is in the interest of justice that the erroneous taxation of the bill of costs be set aside and taxed afresh before a different taxing officer.

3. James Kimani Maina (hereafter the Respondent) opposed the chamber summons through his replying affidavit dated 16. 06. 2021. He attacks the motion as misleading and a misrepresentation of facts aimed at misleading the court. He asserts that the taxation of the bill of costs was consistent with the orders of the trial court, provisions of the Advocates Remuneration Order and principles of taxation.

4. Pointing out that by an order of the trial court, the costs in Nairobi Milimani HCCCNo. 7 of 2015 were to be on the lower scale as the subordinate court had pecuniary and territorial jurisdiction to hear and determine the matter; and that the bill of costs was taxed in compliance with the orders of the court under Schedule 7 of the Advocates Remuneration Order. He takes the position that only an appeal to the Court of Appeal can overturn the direction on costs by the trial court and not this reference, the taxing officer being bound by the decision of the trial court. He urged the court to dismiss the summons with costs.

5. The chamber summons was canvassed of by way of written submissions. Counsel for the Applicant focused his submissions on the complaint that the taxing officer erred by taxing the bill of costs as a Party and Party Bill of Costs when it was and Advocate-Client Bill of Costs. That in so doing, she applied the wrong schedule and principles the result being denial of the Applicant’s duly earned legal fees in respect of a matter that was in court for more than six (6) years.

6. It was further submitted that this court had jurisdiction to interfere with the wrong decision of the taxing officer, a decision which has since occasioned miscarriage of justice by denying the Applicant fees that he is entitled to. Counsel viewed the Respondent’s response as a deliberate attempt to mislead the court with the aim of denying the Applicant his fees. In conclusion, it was submitted that the bill of costs was drawn to scale and the decision of the taxing officer ought to be disturbed by allowing the chamber summons.

7. The Respondent defended the taxing officer’s decision. The Respondent anchored his submissions on the fact that the bill of costs was properly taxed pursuant to the trial court’s decision in Nairobi Milimani HCCCNo. 7 of 2015. That the bill of costs as drafted did not consider the trial court’s directive on costs which the taxing officer correctly followed. Counsel dismissed the Applicant’s claim that the taxing officer converted the Advocate-Client Bill of Costs into a Party and Party Bill of Costs as unfounded. Addressing instructions fees, and calling to aid the decision in Joreth Limited v Kigano & Associates[2002]eKLR, counsel argued that the taxing officer’s decision on the said item was ascertained by the trial court’s decision, and therefore in awarding Kshs. 50,000/- the taxing officer considered the work done.

8. Concerning attendances for hearing and mention, counsel concurred with the decision of taxing each attendance at Kshs. 1,400/-. Concerning getting up fees, it was submitted that this is an item provided for under Schedule 6, where a trial is conducted before the High Court, and given the trial court’s decision on costs, the charge was not justified. Therefore, the taxing officer was justified to disallow the same. On expenses, itemized as 252, 253 and 254 in the Bill of Costs, counsel stated that the taxing officer rightfully disallowed these there being no proof of such expenses. It was further argued that the sums of Kshs. 336,200/- already advanced to the Applicant was correctly factored in the final award.

9. Counsel citing the decision in Republic v Minister for Agriculture & 2others ex parte Samuel Muchiri W’ Njuguna [2006] eKLR contended that the Applicant’s Bill of Costs contravened the principles of taxation and the taxing officer appropriately applied herself to the relevant Schedule of the Advocates Remuneration Order in due cognizance on the court’s directive on costs. The court was urged to uphold the decision of the taxing officer the Applicant having failed to demonstrate that she erred in principle in taxing the bill.

10. The Court has considered the grounds advanced in the reference as well as the affidavit material and submissions. As regards the nature of taxation proceedings, the court in Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd [1972] EA162, Spry, V-P. stated at p.164 that: -“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, and particularly where he is an officer of great experience, merely because it thinks the award somewhat is 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.”

11. The Court of Appeal in the foregoing decision laid down some principles to undergird the exercise of discretion by taxing officers in the assessment of costs as follows: -“(a)that costs be not allowed to rise to such a level as to limit access to the courts to the wealthy only;(b)that a successful litigant ought to be fairly reimbursed for the costs he has had to incur;(c)that the general level of remuneration of advocates must be such as to attract recruits to the profession; and(d)that so far as practicable there should be consistency in the awards made.”See also Rodgers Mwema Nzioka v The Attorney General & 9others (2007)eKLRand Rogan Kamper v Grosvenor (1978) eKLR.”

12. Ojwang J (as he then was) in Republic v Minister for Agriculture & 2 others Ex-parte Samuel Muchiri W’Njuguna & 6 Others (supra) observed that: -“Discretion, as an aspect of judicial decision-making, is to be guided by principles, the elements of which are clearly stated, and which are logical and conscientiously conceived. It is not enough to set out 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… Taxation of costs as a judicial function is to be conducted regularly, on the basis of rational criteria which are clearly expressed for the parties to perceive with ease. Regularity in this respect cannot be achieved without upholding fairness as between the parties; the taxing officer is to provide only for reasonable compensation for work done; the taxing officer should avoid the possibility for unjust enrichment for any party and ought to refuse any claim that ends to be usurious; so far as possible, the taxing officer should apply the test of comparability; the taxing officer should endeavour to achieve objectivity when considering ill-defined criteria such as public policy, interests affected, importance of matter to parties, or importance of matter to the public; the taxing officer should clearly identify any elements of complexity in the issues before the Court – and in this regard should revert to the perception and mode of analysis and determination adopted by the trial judge; the taxing officer ought to describe accurately the nature of the responsibility which has fallen upon counsel; the taxing officer should state clearly the nature of any novel matter in the proceedings; the taxing officer should determine with a measure of accuracy the amount of time, research and skill entailed in the professional work of counsel.”

13. Similarly, Ringera,J(as he then was) in First American Bank of Kenya v. Shah & Others [2002] 1 E.A. 64 at p.69 stated; -“First, I find that on the authorities, this 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 so 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 relevant 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 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. 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.”

14. With the foregoing principles in mind, the court has reviewed the grounds agitated by the respective parties before it. The Applicant’s reference challenges the entirety of the taxing officer’s decision and in the alternative takes issue with the awards by the taxing officer under items 1, 37, 38, 52, 79, 89, 90, 103, 183, 187, 197, 222, 252, 253, 254 and 255 of the Bill of Costs. As concerns the former, the Applicant argues that the taxing officer erred in law in applying the wrong Schedule of the Advocates Remuneration Order and further misconstruing the fact that the Bill of Costs was a Party and Party Bill of Costs.

15. Firstly, a cursory review of the ruling of the taxing officer reveals that she was alive to the fact that the Bill of Costs before her was an Advocate-Client Bill of Costs when she stated “What is before me for determination is the Advocate/Client Bill of costs dated 10th June 2020 and filed in court on 18th June 2020” and thereafter proceeded to tax the same as such.

16. Secondly, she took cognizance of the trial court’s final order that ultimately affected the scale and Schedule of the Advocates Remuneration Order to be applied. In that regard, she stated; -“I have carefully read and considered the Respondents written submissions. I have also gone through the court file, the bill of costs and supporting documents on record.The bill of costs arises from Milimani HCCC No. 7 of 2015 where the Applicant was instructed by the Respondent to represent them in the said suit. Hon. Lady Justice J. Kamau in her judgment inHCCC No. 7 of 2015 delivered on 10/12/2019 stated as follows; -“That for avoidance of doubt, the costs payable herein will be on the lower court scale as the subordinate court had pecuniary and territorial jurisdiction to hear and determine the matter as envisaged in paragraph 58 of the Advocates (Remuneration Order)”. Therefore, applicable law is Schedule 7 of the Advocates Remuneration Order.” (sic)

17. Paragraph 58 of the Advocates Remuneration Order provides that;-“In causes or matters which, having regard to the amount recovered or paid in settlement or the relief awarded, could have been brought in a resident magistrate’s or other subordinate court, costs on the scale application to subordinate courts only shall be allowed unless the judge otherwise orders.”

18. The court has taken the liberty of reviewing the final orders in the judgment in Nairobi Milimani HCCC No. 7 of 2015 as read with the relevant provisions of the Advocates Remuneration Order. The purport of the trial court’s direction regarding the question of costs was clear. Therefore, the taxing officer did not err when she applied herself to Schedule 7 of the Advocates Remuneration Order in taxing the Applicant’s Bill of Costs.

19. The specific items challenged by the Reference were items 1, 37, 38, 52, 79, 89, 90, 103, 183, 187, 197, 222, 252, 253, 254 and 255 with specific attention being made to the award on instruction fees, court attendances, drawings, making copies and attending to the registry for filing. On item 1 in the Bill of Costs, the Applicant’s contention was that the taxing officer taxed the same as a Party and Party Bill of costs instead of an Advocate-Client Bill of Costs while basing her assessed award on the sum of Kshs. 44,720/- being the judgment award.

20. This court reiterates its earlier finding on the first limb of that contention and draws guidance from the decision of the Court of Appeal inJoreth Limited v Kigano and Associates[2002] 1 E.A 92 where it was stated 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 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 importance of the cause or matter, the interest of the parties, the general conduct of the proceedings, any direction by the trial judge.”

21. The taxing officer proceeded to award Kshs. 50,000/- under item 1, and in so doing the court expressed herself in part as follows; -“I have carefully read and considered the Respondents written submissions. I have also gone through the court file, the bill of costs and supporting documents on record.The bill of costs arises from Milimani HCCCNo. 7 of 2015 where the Applicant was instructed by the Respondent to represent them in the said suit. Hon. Lady Justice J. Kamau in her judgment in HCCC No. 7 of 2015 delivered on 10/12/2019 stated as follows; - “That for avoidance of doubts, the costs payable herein will be on the lower court scale as the subordinate court had pecuniary and territorial jurisdiction to hear and determine the matter as envisaged in paragraph 58 of the Advocates (Remuneration Order)”. Therefore, applicable law is Schedule 7 of the Advocates Remuneration Order.The Respondent is not opposed to most of the items in the bill which will be allowed as prayed. I will only deal with disputed items.On instruction fees; the Applicant has charged a sum of Kshs. 500,000/. Its trite law that the instruction fees is calculated from the value of the subject matter which is derived from the pleadings, judgment and or settlement. The judgment in Milimani Case was entered in the sum of Kshs. 44,720/-. I will therefore take the said sum as the value of the subject matter. Using Schedule 7 of the 2014 Remuneration Order, instructions fees would be Kshs. 15,000/-.However, taking into account all relevant circumstances of the case, including the nature and importance of the case to parties, documentation involved, the research done, the trending nature of the inflation in the country, the general conduct of the proceedings, time taken to conclude trial, that is; 5 years amongst other factors and being guided by the principles set out in the case ofJoreth Ltd v Kigani & AssociatesCivil Appeal No. 66 of 1999 [2002] 1 EA 92, I will increase instruction fees to Kshs. 50,000/-. I therefore tax item 1 at Kshs. 50,000/-. I tax off Kshs. 450,000/-.” (sic)

22. A perusal of the record and material presented before the taxing officer for purposes of the taxation reveals that the question of instructions was not in dispute; the Applicant appears to have been instructed by the Respondent to prosecute Nairobi Milimani HCCC No. 7 of 2015. Consequently, it is safe to conclude that the taxing officer was correctly cognizant of the applicability of Schedule 7 of the Advocates Remuneration Order 2014 in assessing the taxable amount under item 1, given the judgment award by the trial court and the directions as to costs.

23. Concerning item 37, the taxing officer did not err as paragraph 5 of Schedule 7 provides that the fee chargeable for taking instructions to proceed, oppose draw, engross and or file an application is Kshs. 3,000/-. Regarding items 38, 52, 79, 89, 90, 103, 183, 187 and 222 which related to attendances, the taxing officer in her ruling noted that; -“On attending court for hearings of Notice of Motion and mentions; Items 8, 52, 79, 89, 90, 103, 183, 187 and 222 is taxed at Kshs 1,400/- as provided for under Schedule 7, paragraph 6 of the 2014 Remuneration Order.” (sic)

24. Item 197 relates to getting up fees which fees are not provided for under the applicable Schedule, to which the taxing officer appropriately addressed herself as follows; -“Item 197 on getting up fees is taxed off. The same is not provided for under Schedule 7 of the 2014 Remuneration Order.” (sic)

25. Items 252, 253 and 254 relate to various attendances. The taxing officer stated that;“Items 252, 253 and 254 are taxed off. There are no such documents, services and attendance on record. Court cannot rely on assumption.” (sic)

26. And lastly, regarding item 255, the taxing officer concluded by stating that, “Items 255 on attending court for taxation is taxed at 3,000/-.” (sic)

27. Juxtaposed against the relevant and or related Paragraphs of the Advocates Remuneration Order under Schedule 7, the taxing officer’s award of Kshs. 1,400/- for attendances to court and the taxing off getting up fees cannot be faulted. However, regarding item 252, the taxing officer erred in taxing off the same, as fees for drawing and filing of an affidavit or return of service is provided for at Kshs. 1,000/-. Nevertheless, she appropriately applied herself when she taxed off items 253 and 254 pertaining to making of copies and registry attendances as these are not provided for under Schedule 7. Lastly, the concerning the award on item 255 the taxing officer correctly applied herself to Schedule 6 Paragraph 7(a) which relates to attendances before the registrar or deputy registrar in assessing the same at Kshs. 3,000/- in total for attendances claimed before her.

28. The subject matter being an Advocate-Client bill of costs, Schedule 7 of the Advocates Remuneration Order 2014 at Paragraph B provides that; -“As between advocate and either the minimum fees shall be—(a)the fees prescribed in A above increased by 50%;(b)the fees ordered by the court increased by the 50%; or(c)the fees agreed by the parties under paragraph 57 increased by 50%, as the case may be and the increase to include all proper attendances on the client and all necessary correspondence.

29. Thus, all taxable or awardable items under Part A of Schedule 7 as between Advocate-Client are to be increased by 50%. The taxing officer correctly applied herself to the foregoing provision and equally proceeded to factor in the VATcomponent to the total award.

30. In conclusion, the court reiterates the words of the Court of Appeal inKipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLRto the following effect; -“On a reference to a judge from the taxation by the Taxing Officer, the judge will not normally interfere with the exercise of discretion by the taxing officer unless the taxing officer, erred in principle in assessing the costs. In Arthur v Nyeri Electricity Undertaking [1961] EA 497, the predecessor of this Court said at page 492 paragraph I:“where there has been an error in principle the court will interfere; but questions solely of quantum are regarded as matters with which the taxing officers are particularly fitted to deal and the court will interfere only in exceptional cases”.An example of an error of principle is where the costs allowed are so manifestly excessive as to justify an inference that the taxing officer acted on erroneous principles – see Arthur v Nyeri Electricity Undertaking (supra) or where the taxing officer has over emphasized the difficulties, importance and complexity of the suit (see Devshi Dhanji v Kanji Naran Patel (No. 2), [1978] KLR243. We have no doubt that if the taxing officer fails to apply the formula for assessing instructions fees or costs specified in schedule VI or fails to give due consideration to all relevant circumstances of the case particularly the matters specified in proviso (1) of schedule VIA (1), that would be an error in principle. And if a judge on reference from a taxing officer finds that the taxing officer has committed an error of principle the general practice is to remit the question of quantum for the decision of taxing officer (see - D’Souza v Ferrao[1960] EA602. The judge has however a discretion to deal with the matter himself if the justice of the case so requires (see Devshi Dhanji v Kanji Naran Patel (No. 2)(supra).”

31. In the result, the Applicant’s reference is without merit, save for the sole issue raised in respect of item 252. For the avoidance of doubt, the decision of the taxing officer dated 22. 04. 2021 upheld save for item 252 which is set aside as stated elsewhere in this decision. Resultantly, the sub-total sum of Kshs 298,335/- is increased by Kshs. 1,000/- (on item 252) to Kshs 299,335/-. The reference has succeeded on this account only. The sum of Kshs 299,335/- should have been increased by 50%, 14% VAT component and disbursements, less the total advances amounting to Kshs 336,200/- to arrive at the correct net sum awardable. The Applicant is awarded the costs of the reference.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 5TH DAY OF DECEMBER 2023. C.MEOLIJUDGEIn the presence ofFor the Applicant: Mr. GaturuFor the Respondent: Ms. Gikonyo h/b for Mr. KamauC/A: Emily