[2023] KEHC 27306 (KLR)

Isaak v Githogori & Harrison Associates Advocates (Miscellaneous Application E057 of 2022) [2023] KEHC 27306 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27306 (KLR)

Republic of Kenya

In the High Court at Kajiado

Miscellaneous Application E057 of 2022

SN Mutuku, J

December 14, 2023

Between

Dr. Ibrahim Haji Isaak

Applicant

and

Githogori & Harrison Associates Advocates

Respondent

Ruling

1. This Ruling relates to a reference filed by the Applicant through a Chamber Summons dated 8th December, 2022 based on sections 1A, 1B and 3A of the Civil Procedure Act, Rule 2 & 11 of the Advocates Remuneration Order and all other enabling provisions of the law for orders that:a.Spent.b.The decision of Taxing Officer in the ruling delivered on 28th November, 2022 with respect to items 1 and 2 of the Bill of Costs dated 7th April, 2022 in Misc. Civil Application No 19 of 2022 at Kajiado, being instruction fees and getting up fees, be taxed off, set aside/or struck off.c.There be stay of execution of the ruling and/or certificate of taxation herein pending the hearing and determination of this reference.d.Costs of this Application to be provided for.e.Any other order this Honourable Court deems just.

2. The grounds in support of the application are found on the face of it and in the Supporting Affidavit dated 8th December, 2022. In summary, the application is questioning the actions of the Taxing Officer whom he accuses of failing to consider his submissions and his Replying affidavit and also by holding that his submissions were not on record or filed. He accuses the Taxing Officer in making errors of principle and law in awarding instruction fees of Kshs. 300,000/- and consequently getting up fees of Kshs. 100,000/-.

3. He argues that the Respondent took up the defence of the matter in the lower court from another counsel after the defence had been filed by the firm of Njoroge Wachira & Co Advocates and the matter fixed for hearing That the Respondent had not drawn the defence and hence was not entitled to instruction fees and getting up fees. Further, that the Respondent only attended court thrice on 15th July 2020, 24th February 2020 and 13th October, 2020 as the other times the matter was adjourned.

4. He claims that the matter is still active; that following taxation, execution is imminent, and this would render this application nugatory and that he would suffer irreparable harm and substantial loss if stay of execution is not granted.

5. This matter proceeded by way of written submissions and that parties were directed to file submissions to the Reference. Both parties have filed their submissions.

Applicant’s Submissions 6. The Applicant filed their submissions dated 5th January, 2023 in which he has raised the issue whether the instruction fees and getting up fees should be taxed off entirely. He argued that it is trite law, as was held in the case of Joreth Limited -vs- Kigano & Associates NRB CA Civil Appeal No. 66 of 1999[2002] eKLR, that the Honourable Judge will interfere with the taxing officer’s ruling where the taxing officer erred in principle in assessing costs. He submitted that the taxing officer failed to consider his Replying Affidavit and submissions and found that the submissions had not been filed yet the same had been filed on 5th August, 2022.

7. He argued that the taxing officer awarded instruction fees and getting up fees yet the defence had been done by a different advocate; that he had already paid the instruction fees to the previous advocate and that the Respondent is only entitled to actual work done. To support of his case, the Applicant cited Keziah Gathoni Supeyo -vs- Yano t/a Yano & Co. Advocates [2019] eKLR, where the court held that:“According to schedule VIA(a) of the Advocates Remuneration Order the underlying factors on instructions fees are clearly spelt out. To give meaning to the provisions the taxing officer is clothed with wide discretion to make an inquiry as to the suitability on instructions fees in order to enhance or reduce it altogether. The approach to be adopted in taxing instruction fees lies in the principles in the case of Jorerth Ltd v Kigano Advocates 2002 IEA 92 where the court held interalia that:‘The instructions fee is an independent and static item it is charged once only and it is not affected or determined by the stage the suit has reached.’The facts of the application according to the outcome narrated by the applicant’s counsel it appears to me that more than one advocate has acted for the party in the ELC proceedings. On the issue of instructions fees the taxing officer is bound to consider that services rendered involved more than one counsel who has filed the bill of costs.”

8. It is submitted that the Respondent in their Bill of Costs dated 7th April, 2022 on item 1, sought for instruction fees for receiving instructions to defend against a suit instituted by the plaintiff. That the said instructions are based on a statement of defence not filed by the Respondent and therefore not entitled to such fees. Further, that they did not file any application in the said suit to warrant instruction fees. That it was unfair and unjust to charged twice for this fee by two different advocates. He relied on the case of Kenyariri & Associates Advocates -vs- Salama Beach Hotel Ltd & 4 others [2014] eKLR, where it was held, inter alia, that:“…………I am in agreement with the reasoning and the award by the taxing officer. Instruction fees is only paid to an advocate in respect to the work done. Having not drawn the Plaint in Malindi HCCC No.118 of 2009, the Applicant is not entitled to the instruction fees in respect to the suit. As was held in the case of First American Bank of Kenya vs Shah & Another (2002) 1 EA 64, an advocate becomes entitled to full instruction fees to defend a suit the moment a defence is filed and the subsequent progress of the matter is not relevant. The same reasoning applies to the filing of a Plaint. The advocate who draws a Plaint is the one entitled to the full instruction fees notwithstanding the progress of the matter. The subsequent advocates can only be paid for the actual work done……….”

9. He also cited Thomas K’Bahati T/A K’Bahati & Co. Advocates -vs- Janendra Raichand Shah [2020] eKLR and M. Korongo & Company Advocates and Kenya Sugar Research Foundation (2019) eKLR, where the court reiterated finding in Kenyariri case.

10. The Applicant urges that his application be allowed and that item No. 1 being the instruction fees and item 2 being the getting up fees, ought to be taxed off entirely.

Respondent’s submission 11. The Respondent’s submissions are dated 7th June, 2023. Two issues have been raised for determination: (a) whether the Applicant’s Application is merited and (b) who should bear the costs of the Application?

12. The Respondent submitted that the procedure to be adopted by a party who is aggrieved by the decision of the taxing master is provided for under paragraph 11 and specifically at para. 11(1)(2)(3)(4) of the Advocates Remuneration Order. That the Applicant has not complied with this provision. That the Ruling was delivered on 28th November, 2022 and the Applicant was therefore required to, within 14 days, notify the taxing officer in writing of the items of taxation which he objects to. That the Applicant herein failed and or neglected to do this despite the ruling itself indicating at paragraph 23 the, “the right to appeal in 14 days.”

13. It was their case that the Applicant’s application is already flawed and defective in nature. That the order provides for a Reference before a judge. That in disregard of this the Applicant has brought before this Honourable Court a Miscellaneous application. He The Respondent relied Ahmednasir Abdikadir & Company Advocates -vs- National Bank of Kenya Limited [2007] eKLR, where the court stated that:“That is so because even though the assessment of costs or the taxation of costs is not a judgment, it is a binding judicial decision under Section 51 of the Advocates Act as read with Rule 13 of the Advocates (Remuneration) Order, lawfully and properly scrutinizeable or questionable or challengeable only through a special procedure by way of reference under rule 12 of the Advocates (Remuneration) Order in the High Court, or by way of Objection in the High Court and in an appeal to the Court of Appeal both under Rule 11 of the Advocate's (Remuneration) Order.”

14. They also relied on Delmonte Kenya Limited-vs- Kenya National Chamber of Commerce and Industry (KNCCI) Murang’a Chapter & 2 others [2021]eKLR where it was held:The procedure contemplated above is:a.The aggrieved party issues a notice within 14 days on the items objected;b.The Taxing Officer shall forthwith give reasons for his decision;c.Upon receipt of the reason, the objector shall within 14 days file an application to the High Court setting out grounds for objection;d.If dissatisfied with the High Court, the objector shall with leave of court appeal to the Court of Appeal.The procedure above as drafted carries a mandatory requirement. The Court notes that the Applicant has complied with all the requirements outlined in Section 11 above. The Court will then proceed to look at the application on its merits.

15. It is submitted that the Applicant has failed to follow the mandatory procedure and therefore even going to the merits of the Application is in vain; that the Applicant has not given any reasons as to why he did not comply with the procedure; that the Applicant only challenges item 1 and 2 of the Bill of Costs dated 7th April, 2022; that the matter involved defending the Applicant in a case involving Kshs. 15,600,000/- where under the instruction fees they charged Kshs. 648,000 and getting up fees of Kshs. 216,000/; that the taxing master slushed this amount in half by awarding Kshs. 300,000/- as instruction fees and kshs. 100,000/- as getting up fees and that the award was at the discretion of the taxing master and that they have accepted the said award. They urged this court not to interfere with this award as it is reasonable. They relied on Otieno Ragot & Company Advocates -vs- Kenya Airports Authority [2021] eKLR, where it was held that:“The circumstances in which the High Court may interfere with the exercise of discretion by a taxing officer in a reference are limited. The principles are captured in many decisions of this Court going back many years. See for instance Arthur Vs Nyeri Electricity Undertaking [1961] E.A 492 and Premchand Raichand Limited & another vs. Quarry Services of East Africa Limited and another [1972] E.A 162. In the latter case, the Court stated 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 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”.

16. On the issue of costs they relied on section 27 of the Civil Procedure Act and the case of Peter Muriuki Ngure -vs- Equity Bank (K) Ltd [2018] eKLR where the court stated that:“It is quite clear therefore that the key word in this Section is “event”. As stated in the submissions by the Respondent, this word has been addressed in the Judicial hints on Civil Procedure by Justice (Rtd) Kuloba as follows;“The words “the event” mean the result of all the proceedings to the litigation. The event is the result of entire litigation. It is clear however, that the word “event” is to be regarded as a collective noun and is to be read distinctively so that in fact it may mean the “events” of separate issues in an action. Thus the expression “the costs shall follow the event” means that the party who on the whole succeeds in the action gets the general costs of the action, but that, where the action involves separate issues, whether arising under different causes of action or under one cause of action, the costs of any particular issue go to the party who succeeds upon it. An issue in this sense need not go to the whole cause of action, but includes any issue which has a direct and definite even in defeating the claim to judgment in the whole or in part”.

Determination 17. Rule 11 of the Advocates Remuneration Order makes provision for the procedure an aggrieved party must adopt. This Rule provides that:(1)Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.(2)The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection.(3)Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.(4)The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) for the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.

18. Has the Applicant complied with the above procedure? It is the case for the Applicant that he followed procedure in this matter. The Respondent holds a different view, that procedure was not followed.

19. I have considered the rival arguments. I have read the numerous authorities cited by the parties and also read the ruling of the Taxing Master dated 28th November, 2022. The said ruling has given reasons for the taxation, especially on the disputed items, the instruction fees and the getting up fees. I have noted that the Ruling was delivered on 28th November 2022 and the Application was filed on 9th December 2022 within 14 days.

20. I have considered the arguments by the Respondent that the amount they had sought was slashed into half in the taxed bill. It is my view that the issue is not the amount taxed but that the Respondents sought fees for instruction fees which the Applicant claims is not payable to the Respondent because there was another advocate who filed the defence. I understand the Applicant to be saying that he cannot be charged for instructions fees twice on the same matter. I also understand the Applicant to be saying that the taxing officer failed to consider his documents which were already filed.

21. I am alive to the principle that this court should not interfere with the discretion of the taxing officer unless the taxing officer fell into error of principle. In Republic vs. Minister for Agriculture & 2 Others ex parte Samuel Muchiri W’njuguna [2006] eKLR, the court stated inter alia as follows:“………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…”

22. I find that the Applicant is raising a valid point that requires a second chance. It is for this reason that I find in the Applicant’s favour and allow his application. I hereby set aside the decision of the Taxing Officer in her Ruling dated 28th November 2022 with respect to items 1 and 2 being the instructions fees and getting up fees. The Bill of Costs dated 7th April 2022 is hereby remitted for fresh taxation by a different Taxing Officer in respect to the two contested items.

23. In respect of costs for this application, I hereby direct that each party shall bear own costs.

24. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 14TH DECEMBER 2023. S. N. MUTUKUJUDGE