[2022] KEHC 12742 (KLR)

Jumuia Hotel v Stephen Ndanyi & Juliana Chausiku Osogo (Suing as the legal representatives of the Estate of Catherine Atemo Ndanyi - Deceased) & another (Civil Appeal 24 of 2019) [2022] KEHC 12742 (KLR) (26 August 2022) (Ruling)

Neutral citation: [2022] KEHC 12742 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal 24 of 2019

FA Ochieng, J

August 26, 2022

Between

Jumuia Hotel

Appellant

and

Stephen Ndanyi & Juliana Chausiku Osogo (Suing as the legal representatives of the Estate of Catherine Atemo Ndanyi - Deceased)

1st Respondent

Perihab Academy

2nd Respondent

(eing an Appeal from the Ruling on the 1 st Respondent’s Party to Party Bill of Costs of Hon. Lina Akoth, Deputy Registrar delivered on 13 th May 2021 in Kisumu HCCA No. 24 of 2019)

Ruling

1By a ruling dated May 13, 2021, the learned taxing officer taxed the 1st respondent’s bill of costs in the sum of Kshs 162,760/=. 1. The appellant was dissatisfied with the said ruling and filed the reference which is the subject of the ruling.

2. By its reference, the appellant asked the court to review, set aside or vary the decision which the taxing officer made in respect to the following items; 5, 6, 7, 8, 12, 15, 17, 18, 19, 21, 22, 23, 25, 28, 29, 30, 31, 32, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48 and 49.

Lack of Proof 3. The primary complaint of theappellant was that the 1st respondent failed to provide documentary proof to prove the claims of;a.Service of various documents;b.Perusal of various documents;c.Attendance in court; andd.Disbursements.

Overcharging for Perusal 4. Theappellant submitted that the 1st respondents had overcharged for perusal of their own authorities.

5. However, theappellant did not specify the impropriety in the said decision.

6. I find that the appellantdid not show that the taxing officer had applied the wrong principles in respect to this issue.

7. There was no indication of any irrelevant factors which the taxing officer had taken into account.

8. There was also no indication that the taxing officer had failed to take into account some relevant factor.

The Law 9. It is well settled that the court will not interfere with the exercise of the taxing officer’s discretion unless it is shown that the taxing officer had not exercised the discretion judicially. Examples of instances which would lead to the setting aside of the decision of the taxing officer include;a.The disregard of relevant factors;b.Taking into account irrelevant factors;c.Applying the wrong principle;d.Wrongly interpreting the applicable rules of law;e.Awarding either such a high or low sum that no taxing officer who was acting reasonably could have granted.

10. In a nutshell, unless it is shown that the taxing officer had acted in a manner that was inconsistent with established principles and practice, the court would not interfere with the decision of the said taxing officer.

Did the Taxing Officer Exercise Her Discretion Judicially or Not? 11. The taxing officer expressed herself in the following manner;“I have considered the items in theparty and party bill of costs and itis my considered view that the itemstherein are drawn to scale and/or arereasonable in consonance with thesixth schedule of the AdvocatesRemuneration Order (ARO) 2014, assuch are taxed as drawn, save forthe following items; ……….”

12. According to the 1st respondent;“…….. this paragraph and indeed theentire ruling, stating the reasonsleaves no doubt that the taxing masteraddressed her mind to the complexityof the case, adopted a flexible andsensible approach to the task ofstriking the balance, while takinginto account the particular featuresof theappeal.”

13. Frankly, I failed to trace, in the ruling, the consideration which the 1st respondents alluded to in their submissions. The taxing officer made no reference to the complexity of the case.

14. She did not talk about adopting a flexible or sensible approach to the task of striking the balance.

15. Furthermore, the taxing officer did not make reference to any particular features of the appeal.

16. The ruling was precise. It taxed theparty and party of costs as drawn, because it had been drawn to scale and/or because it was reasonable, in consonance with the sixth schedule of the Advocates Remuneration Order.

17. Assuming that the taxing officer was very right, regarding the fact that the bill of costs was drawn to scale, that cannot be a sufficient answer to the reference herein.

18. I so find because during taxation theappellant hadalready pointed out that some of the fees claimed by the 1st respondent were not supported by evidence that would show the actual services rendered.

19. As was held in the case of Desai, Saruia & Pallan Advocates Vs Jambo Biscuits (kenya) Limited[2014] eKLR;“Taxation of a bill of costs, like allother aspects of litigation, is basedlargely on evidence. It is also anadversarial process. As the bill wascontested, it behoved the applicantto present to the taxing master alldocuments and materials in supportof its claim.”

20. I would add that even when the bill of costs was not opposed, it is imperative that the taxing officer verifies matters such as whether or not the applicant attended court on the dates cited in the bill; whether or not the disbursements claimed were backed with receipts; and whether or not the trial court had awarded costs of a particular application or a particular attendance, to the applicant.

21. In the case of Mumias Sugar Company Limited Vs Tom Ojienda & Associates[2019] Eklr, Thecourt held as follows;“76. When the taxing officer ordered

for the payment of money which hadallegedly been disbursed by theadvocate, on behalf of theclient, yetthe taxing officer had not verifiedwhether or not the funds had beendisbursed, that was an error inprinciple.”

22. It cannot be right to award to an applicant an amount which he claimed as a disbursement, if he did not provide proof of such disbursement.

23. In the case of Hezron Odhiambo Abok Vs Prajapat Pravinbhai Jivabhai Hc. Misc. Application No 84 OF 2018, Musyoka J held that;“……. it was incumbent upon theapplicant to prove the disbursementshe claimed. There is no evidence byway of receipts as to how he came tothe same, and I hold that the taxingofficer cannot be faulted for taxingoff item 47. ”

24. In this case I find that the taxing officer did not verify whether or not the 1st respondents had attended court on all the instances when they claim to have done so.

25. In the circumstances I find that there are grounds for interfering with the decision of the taxing officer. Therefore, I allow the reference, set aside the ruling dated May 13, 2021, and order the hon Lina Akoth to undertake the task of tasking the bill of costs afresh.

26. Ordinarily, a fresh taxation would be conducted by a different taxing officer; but because the error in this case is one which requires verification, I find that there would be no prejudice to any of the parties if the same taxing officer conducted the requisite process of verification.

27. As regards the costs of the reference, I order that the same shall await the fresh taxation. If the exercise yields a result that is less than the sum awarded earlier, the 1st respondent would pay the costs of the reference.

28. On the other hand, if the results remain the same as earlier awarded, the appellant shall pay to the 1st respondent the costs of the reference.

DATED, SIGNED AND DELIVERED AT KISUMUTHIS 26TH DAY OF AUGUST 2022FRED A. OCHIENGJUDGE