[2013] KEHC 1224 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC. CIVIL APP. NO.439 OF 2010

JANE GATHONI MURAYA KANYOTU

(The Estate of JAMES KANYOTU)…………………………………………………APPLICANT

VERSUS

ABUODHA & OMINO ADVOCATES…….…………………………………………RESPONDENT

RULING

The Taxing Officer of this court assessed the Advocate – Client Bill of Costs which was filed by the Respondent at Kshs.22,146,425/-. The ruling was delivered on 9th October 2012. The Applicant was aggrieved by the decision. She has filed a reference to this court pursuant to Paragraph 11(2) of the Advocates Remuneration Order. She sought the following order:

“That the decision of the Deputy Registrar dated 9th October 2012 be set aside and the Respondent’s Advocate-Client Bill of Costs dated 21st September 2010 be taxed afresh.”

The grounds in support of the reference are stated on the face of the application. In essence, the Applicant states that the Taxing Officer committed an error in principle by basing the taxation on an erroneous and superficial value of the subject matter in complete disregard of the fair quantum of the work done by the advocate who had only filed an application for dependency and did not file the actual succession cause. She was aggrieved that the Taxing Officer had disregarded the fact that the amount which was the subject matter of the application was Kshs.2,000,000/- yet she proceeded to assess the Respondent’s bill at Kshs.22, 146,425/-. She was of the view that the amount that was taxed was manifestly excessive and not based on the set parameters applicable in such cases. The reference is supported by the annexed affidavit of the Applicant.

The reference is opposed. Franklin Omino, a partner in the Respondent’s firm filed a replying affidavit in opposition. He denied that the Taxing Officer had committed any error in principle or that she had failed to apply the correct value of the estate of the deceased in assessing the Respondent’s Bill of Costs. He swore that the Taxing Officer took into account that the Respondent had actually taken over the representation of the Applicant from the firm of Judy Thongori and therefore at the time the Respondent had instructions, it was acting for the Applicant in respect of her claim on the entire estate of James Kanyotu-deceased. He stated that the value of the entire estate of James Kanyotu-deceased was more than Kshs.7 billion and therefore the value that was applied by the Taxing Officer in assessing the Respondent’s Bill of Costs was the correct one. He urged the court not to interfere with the taxation of the Taxing Master because the assessment made was neither manifestly excessive nor was there an error of principle.

During the hearing of the reference, this court heard oral rival submission made by Mr. Gitonga for the Applicant and by Mr. Omino for the Respondent. The Applicant seeks the intervention of this court in the assessment of costs by the Taxing Officer of this court. It is trite law that in assessing the costs to be paid to an advocate, the Taxing Officer is exercising judicial discretion. This court can only interfere with such exercise of discretion if it is established that the Taxing Officer committed an error of principle or that the assessed sum was manifestly excessive as to constitute an erroneous assessment of the costs. In First American Bank of Kenya –Vs- Shall & Others [2002] 1EA 64 at Pg.69, Ringera J (as he then was) held thus:

“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 manifestly excessive as to justify an interference that it was based on an error of principle (see Steel Construction Petroleum Engineering (EA) Ltd –Vs- Uganda Sugar Factory [1970] EA 141).”

The Court of Appeal in Joreth Ltd –Vs- Kigano & Associates CA No.66 of 1999 held that a Taxing Officer in assessing costs to be paid to an advocate in an Advocate-Client Bill of Costs is exercising judicial discretion which can only be interfered with when it is established that discretion was exercised capriciously and in abuse of the application of the correct principles of the law.

The Respondent represented the Applicant in a succession cause. The Respondent did not file the succession proceedings. The Respondent did not apply either for a grant of probate or a grant of letters of administration intestate. The Respondent was instructed by the Applicant to make a specific application which was essentially to preserve the properties that comprise the estate of James Kanyotu-deceased pending the hearing and determination of the application. The Respondent was further instructed to seek orders from the court for the provision of the then three minor dependants of the deceased who were still in school. The Taxing Officer therefore fell in error when she assessed the instruction fees of the Respondent as if the Respondent had instructions to act for all the beneficiaries of the estate of the deceased in the succession proceedings. The Respondent had been instructed to act for the Applicant who is but one of the many beneficiaries of the estate of the deceased. Even if this court were to be generous to the Respondent, when the estate of the deceased will be distributed to the beneficiaries, it is unlikely that the Applicant will inherit the entire properties that comprise the estate of James Kanyotu-deceased. The Applicant will get a fraction of the estate.

When the Respondent’s Advocate-Client Bill of Costs was presented to the court, it was apparent that the Respondent sought to be paid instruction fees on the basis of the value of the entire estate of James Kanyotu-deceased. It is on this basis that the Taxing Officer assessed the costs to be paid to the Respondent. This was a misdirection. Under Schedule X of the Advocates Remuneration Order, the Respondent instruction fees were supposed to be assessed under Paragraph 1A(f) and Paragraph B(a). The instruction fees of the Respondent were to be assessed under “…..other applications or proceedings under any provision of the Law of Succession Act not otherwise provided in this schedule: such sum as the taxing officer shall consider reasonable, but not less than …”

In the present reference, there is no dispute that the Respondent was instructed by the Applicant to file a specific application seeking preservatory orders of the properties that comprise the estate of the deceased and for the provision of dependants under Sections 26 & 27 of the Law of Succession Act. The Respondent did not have instructions of all the beneficiaries of the estate of the deceased to seek a grant of probate or a grant of letters of administration intestate in respect of the estate of the deceased. The Taxing Officer therefore committed an error of principle in assessing the instruction fees to be paid to the Respondent. The sum that was assessed as instruction fees of Kshs.16,880,625/- was manifestly excessive and exorbitant that it constituted a clear error of principle. This court will therefore interfere with the exercise of discretion by the Taxing Officer in the said assessment of the instruction fees to be paid to the Respondent. All the items assessed by the Taxing Officer shall remain as taxed save for the instruction fees under Item 1 which this court now assess at Kshs.1. 5 million. This court has taken into account the nature of work done and the pleadings filed in court by the Respondent.

The Applicant shall have the cost of this reference.

DATED AT NAIROBI THIS 1ST DAY OF NOVEMBER, 2013

L. KIMARU

JUDGE