[2013] KEHC 6503 (KLR)
The court found that the learned Deputy Registrar erred in principle by failing to consider and apply the factors set out in the proviso (1) to Schedule VIA(1) of the Advocates Remuneration Order when assessing the instruction fee and getting up fee. The Deputy Registrar's conclusion that the amount claimed was...
Source-derived case information.
- Citation
- [2013] KEHC 6503 (KLR)
- Parties
- Applicant: International Centre for Policy & Conflict & 4 Others; Applicant: Charles Ndungu Mwangi; Applicant: Public Procurement Ethics & Governance; Applicant: Henry Nyakundi Nyangaya; Applicant: Kenya Human Rights Commission; Applicant: International Commission of Jurists, Kenya; Respondent: The Attorney General; Respondent: Independent Electoral and Boundaries Commission; Respondent: Uhuru Muiga Kenyatta; Respondent: William Samoei Ruto; Respondent: James Ondicho Gesami
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 552, 554, 573 & 579 of 2012
- Procedural Posture
- Constitutional Petition / Reference Against Taxation Decision
- Outcome
- Reference allowed; decision of Deputy Registrar set aside on items 1 and 3; taxation to proceed before a different taxing officer; no order as to costs.
- Legal Topics
- Taxation of Costs, Advocates Remuneration Order, Judicial Discretion, Instruction Fee, Review of Taxing Officer Decision
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
International Centre for Policy & Conflict & 4 Others
Applicant
Charles Ndungu Mwangi
Applicant
Public Procurement Ethics & Governance
Applicant
Henry Nyakundi Nyangaya
Applicant
Kenya Human Rights Commission
Applicant
International Commission of Jurists, Kenya
Applicant
The Attorney General
Respondent
Independent Electoral and Boundaries Commission
Respondent
Uhuru Muiga Kenyatta
Respondent
William Samoei Ruto
Respondent
James Ondicho Gesami
Respondent
Procedural Posture
Constitutional Petition / Reference Against Taxation Decision
Legal Issues
- 1 Whether the taxing officer erred in principle in assessing the instruction fee and getting up fee in the bill of costs.
- 2 Whether the Deputy Registrar failed to consider and apply the relevant factors under the Advocates Remuneration Order when taxing costs.
- 3 Whether the court should interfere with the taxing officer's discretion in the assessment of costs.
Ratio Decidendi
The court found that the learned Deputy Registrar erred in principle by failing to consider and apply the factors set out in the proviso (1) to Schedule VIA(1) of the Advocates Remuneration Order when assessing the instruction fee and getting up fee. The Deputy Registrar's conclusion that the amount claimed was excessive and that the matter was not complex was not supported by a clear basis or reasoning. As such, the court was entitled to interfere with the taxing officer's discretion. The decision dated 10th May 2013 was set aside to the extent of items 1 and 3 of the bill of costs, and the taxation was ordered to proceed before a different taxing officer.
Court Disposition
Reference allowed; decision of Deputy Registrar set aside on items 1 and 3; taxation to proceed before a different taxing officer; no order as to costs.
Orders
- The decision dated 10th May 2013 is set aside to the extent of Item 1 and 3 of the Bill of Costs dated 11th March 2013.
- The taxation shall proceed before a different taxing officer.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 552 OF 2012
CONSOLIDATED WITH PETITIONS NOS 554, 573 & 579 OF 2012
BETWEEN
INTERNATIONAL CENTRE FOR POLICY
& CONFLICT & 4 OTHERS.........…...................1ST PETITIONER
CHARLES NDUNGU MWANGI………………...2ND PETITIONER
PUBLIC PROCUREMENT ETHICS & GOVERNANCE……………3RD PETITIONER
HENRY NYAKUNDI NYANGAYA……………...4TH PETITIONER
KENYA HUMAN RIGHTS COMMISSION…….5TH PETITIONER
INTERNATIONAL COMMISSION OF
JURISTS, KEYA ……………………………….. 6TH PETITIONER
AND
THE ATTORNEY GENERAL…………………..1ST RESPONDENT
INDEPENDNET ELECTORAL AND BOUNDARIES COMMISSION…………………………………...2ND RESPONDENT
UHURU MUIGA KENYATTA………………….3RD RESPONDENT
WILLAM SAMOEI RUTO……………………...4TH RESPONDENT
JAMES ONDICHO GESAMI…………………...5TH RESPONDENT
RULING
By a judgment delivered on 15th February 2013, the court awarded costs of the petition to the 5th respondent to be paid by the 4th petitioner. Consequently, the 5th respondent filed a bill of costs dated 11th March 2013 for the taxation of his costs against the 4th respondent.
The 5th respondent’s Notice of Motion dated 14th June 2013 is a reference objecting to the decision of the taxing officer given on item 1 of the bill of costs being the instruction fee sought. In the said bill of costs, the 5th respondent sought the sum of Ksh. 2,000,000. 00 as instruction fees. The taxing officer, taxed off Ksh. 1,600,000. 00 thereby assessing the instruction fee at Ksh. 400,000. 00 only. Item 3, which is the getting up fee, which is also contested, is dependent of the instruction fee.
The 5th respondent is now dissatisfied with the reasons given by the learned Deputy Registrar dated 10th May 2013 in which she set out the principles guiding her discretion and concluded as follows; “In the instant case, the amount of Kshs, 2,000,000/= which the 4th respondent is seeking is excessive. The 4th respondent has not demonstrated that this case was complex. Taking into account the above factors, Kshs 400,000/= is reasonable in respect of instruction fees. I tax off Kshs 1,600,000/= on him.”
The principles upon which the court may interfere with the learned Deputy Registrar’s discretion are now well settled. In Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board Nairobi Civil Appeal No. 220 of 2004 [2005]eKLR, the Court of Appeal stated that, “the judge will not normally interfere with the exercise of discretion by the taxing officer unless the taxing officer, erred in principle in assessing costs.”
In my view and I agree with the applicant, the learned taxing officer failed to take into account or address herself to the factors set out in the proviso (1) to Schedule VIA(1) of the Advocates Remuneration Order. Although the learned Deputy Registrar addressed the various authorities that elucidated how her discretion ought to be exercised, she failed to consider the factors and apply them to the case at hand.
Further, the learned Deputy Registrar concluded that the amount claimed was excessive without setting out or establishing a basis for the finding that the amount claimed was excessive. She also found without setting out the reasons for her conclusion that the matter was not complex.
In the Kipkorir, Titoo & Kiara Case (supra), the Court of Appeal added that; “We have no doubt that if a taxing officer fails to apply the formula for assessing 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 the proviso (i) of schedule VIA(1), that would be an error in principle.”
Likewise, I find and hold that the learned Deputy Registrar erred in principle by failing to take into account and apply the factors elaborated in proviso (1) of schedule VIA(1) of theAdvocates Remuneration Order in coming to the conclusion that the amount sought was excessive and that the matter was not complex. I am therefore entitled to interfere with her decision.
I therefore make the following Order;
The decision dated 10th May 2013 is set aside to the extent of Item 1 and 3 of the Bill of Costs dated 11th March 2013.
The taxation shall proceed before a different taxing officer.
There shall be no order as to costs.
DATED and DELIVERED at NAIROBI this 23rd day of August 2013.
D.S. MAJANJA
JUDGE
Mr Thiga instructed by Waruhiu K’Owade and Nga;ng’a Advocates for the 5th respondent.