[2022] KEHC 12718 (KLR)

Kamau v Association of Action Aid International & 2 others (Civil Suit 9 of 2018) [2022] KEHC 12718 (KLR) (14 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12718 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Suit 9 of 2018

GWN Macharia, J

July 14, 2022

Formerly CIVIL SUIT NO 278 OF 2012

Between

Jean Njeri Kamau

Plaintiff

and

Association of Action Aid International

1st Defendant

Action Aid International Kenya Board

2nd Defendant

William Ntoina

3rd Defendant

Ruling

Background 1. Before court is a Reference brought by the Plaintiff through a Chamber Summons dated 22nd December, 2021 under Paragraph 11(2) of the Advocates (Remuneration) Order 2009, Section 1A, 1B and 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya, Article 50 (1) of the Constitution of Kenya, 2010 and all other enabling provisions of the Law. It arises from the taxing officer’s ruling of 9th December, 2021 in respect to the 1st Defendant’s Party and Party Bill of Costs dated 21st August, 2020. It seeks the following orders:1. That the decision of the Taxing Master (Hon. Esther Mburu) taxing the 1st Defendant's Party and Party bill of costs dated 21st August, 2020 rendered on 9th December, 2021 be reviewed and/or set aside.2. That the 1st Defendant’s Party and Party bill of costs dated 21st August, 2020 be remitted back to the Taxing Master for re-assessment.3. That the cost of this application be provided for.

2. The Reference is premised on the grounds on its face and supported by the affidavit of Erick Naibei, the Plaintiff’s Advocate. He averred that the 1st Defendant’s Party and Party bill of costs which was taxed at Kshs. 688,804/- arose from costs awarded in the judgment delivered by this Court on 5th August, 2020. He contended that the taxing officer erred by awarding instruction fees that was excessively high and unreasonable. He stated that there was no complexity or novelty in the matter as it was a simple defamation case. Further, he faulted the taxing officer for failing to consider the Plaintiff’s written submissions filed in response to the said Bill. It was further contended that the taxing officer failed to give sufficient reason for awarding costs in respect to correspondence which were not proved. Lastly, that the taxing officer failed to apply the relevant provisions of the Advocates Remuneration Order, 2009 and 2014.

3. In response, the 1st Defendant filed a Replying Affidavit sworn by its advocate Nicholas Weru. The advocate averred that the Plaintiff has not presented sufficient reason to warrant varying the decision of the taxing officer as there is no evidence that the same is based on erroneous exercise of discretion or an error of principle. He averred that the instruction fees awarded was not manifestly excessive as contended by the Plaintiff. Further, he faulted the Applicant for not particularizing the other items that the taxing officer allegedly awarded erroneously or in excess.

Submissions 4. The reference was canvassed by way of written submissions. The Plaintiff submitted that contrary to the 1st Defendant’s contention, she filed a Notice of Objection dated 20th December, 2021 indicating all the disputed items of taxation as required under Rule 11(1) of the Advocates Remuneration Order 2009. As regards the instruction fees, the Plaintiff submitted that the taxing officer erred in awarding a sum of a Kshs. 300,000/=. She contended that contrary to the reasons given by the taxing officer, defamation matters are fairly straightforward and do not require thorough research. She urged that a reasonable award under this head should be Kshs. 49,000/=.

5. Reliance was placed on Nyangito & Co Advocates v Doinyo Lessos Creameries Ltd [2014] eKLR for pronouncement that the mere fact that a defendant does research and puts a defence informed by such research is not necessarily indicative of the complexity of the matter. The Plaintiff further cited Issa & Company Advocates v Anhui Construction Engineering Group Co. & Another [2019] eKLR and Mwangi Chege & Co. Advocates v Kenya Broadcasting Corporation [2020] eKLR where the courts stated that a taxing officer should accurately describe the nature and responsibility which has fallen upon counsel in awarding instruction fees.

6. As regards getting up fees, the Plaintiff submitted that her objection to the same is based on the fact that it is calculated from the instruction fees which is disputed. As for the other items in the Notice of Objection, the Plaintiff submitted that the taxing officer failed to consider her submissions on the same and based her decision on wrong provisions of the Advocates Remuneration Order 2009 and 2014 which led to an erroneous decision.

7. On the other hand, the 1st Defendant submitted that the instruction fees awarded is a reasonable amount and the taxing officer's discretion was properly grounded in the reasons she set out in her ruling. It was submitted that the taxing officer took into account all relevant matters for purposes of ascertaining instructions fees as required in the case of Joreth Limited v Kigano & Associates [2002] eKLR. It was contended that the taxing officer appreciated the volume of pleadings filed in the matter which is evidenced by the fact that the judgment contained over 100 paragraphs running to 22 pages. Further, the 1st Defendant urged the Court not to substitute its discretion with that of the taxing officer simply because the court would have arrived at a higher or lower figure.

8. As regards getting up fees, the 1st Defendant submitted that the same should follow the decision on instructions fees. On the other items, the 1st Defendant asserted that the Plaintiff has not explained how the taxing officer exercised her discretion illegally in awarding them.

Analysis and determination 9. A taxing officer exercises a discretionary power in taxing a bill of costs which power must be exercised judiciously. For that reason, a judge sitting on a reference can only interfere with the exercise of a taxing officer’s discretion where it is established that an error of principle was committed in the assessment of the costs. I find guidance in the case of Kipkorir, Tito & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR where the Court of Appeal stated thus;“On 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.”

10. Similarly, in KANU National Elections Board & 2 others v Salah Yakub Farah [2018] eKLR, the High Court cited the South African case of Visser v Gubb 1981 (3) SA 753 (C) 754H – 755C where the Court posited that:“The court will not interfere with the exercise of such discretion unless it appears that the taxing master has not exercised his discretion judicially and has exercised it improperly, for example, by disregarding factors which he should properly have considered, or considering matters which it was improper for him to have considered; or he had failed to bring his mind to bear on the question in issue; or he has acted on a wrong principle. The court will also interfere where it is of the opinion that the taxing master was clearly wrong but will only do so if it is in the same position as, or a better position than, the taxing master to determine the point in issue… The court must be of the view that the taxing master was clearly wrong, i.e. its conviction on a review that he was wrong must be considerably more pronounced than would have sufficed had there been an ordinary right of appeal.”

11. Bearing in mind the principles laid down in the above authorities, the issue that arises for determination is whether the taxing officer rightly exercised her discretion in determining instruction fees and in awarding getting up fees as well as the other disputed items.

12. To begin with, it is not in dispute that the Plaintiff instituted a defamation suit against the Defendants. The record shows that the value of the subject matter could not be gleaned from the pleadings or the judgment delivered by this court on 5th August, 2020 dismissing the suit. This means that the taxing officer had to use her discretion in assessing the instructions fees that she deemed to be just in the circumstances taking into account all relevant factors.

13. In the case of Joreth Ltd v Kigano & Associates [2002] 1 EA 92, the Court of Appeal stated 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 the importance of the cause or the matter, the interest of the parties, general conduct of the proceedings, any direction by the trial judge and all other relevant circumstances.”

14. In this case, the 1st Defendant sought instructions fees of Kshs. 655,000/- in the subject Bill of Costs. The taxing officer appreciated that applicable schedule for taxation of the Bill is Schedule 6 of theAdvocates (Remuneration) Order 2009 and 2014 since the suit was filed in 2012. At page 2 paragraph 1 of her ruling of 9th December, 2021, the taxing officer outlined the factors for consideration in increasing the basic instructions fees allowable under the relevant Schedule of the Advocates Remuneration Order, 2009. She went on to note that whereas the matter was not complex and did not raise novel issues, it was very involving and required a thorough research as well as filing of voluminous documents. She also took into account the fact that the matter was transferred to Naivasha High Court from Nairobi and hearing had to start de novo and for those reasons, she awarded instructions fees of Kshs. 300,000/- and taxed off Kshs. 355,000/- from the amount claimed.

15. Whereas it is evident that the taxing officer applied the correct principles in arriving at the instructions fees, I disagree with her finding that this matter was very involving and in any case, she did not indicate with clarity the amount of time and skill and research that went into defending the matter so as to qualify it as such. See: Republic v Minister for Agriculture & 2 others Ex-parte Samuel Muchiri W’Njuguna & 6 others [2006] eKLR. Further, the record bears witness that no voluminous documentation was involved in this matter and it entailed a simple and straight forward defamation issue. In my view therefore, the taking into account of irrelevant factors was not a judicious exercise of discretion and constituted an error of principle as it resulted in an award of Kshs. 300,000/= as instructions fee which was excessive in the circumstances.

16. As regards getting up fees (item 2), it is trite that the same flows directly from the instructions fees. This is evidenced by Paragraph 2 of the Schedule VI of the Advocates (Remuneration) Order, 2009 which provides as follows;“In any case in which denial of liability is filed or in which issues for trial are joined by the pleadings, a fee for getting up trial and preparing the case for trial shall be allowed in addition to the instruction fee and shall not be less than one third of the instruction fee allowed in taxation”.

17. In the premises, it follows that the getting up fees awarded by the taxing officer was also excessive and is for setting aside.

18. The other items disputed by the Plaintiff according to her Notice of Objection dated 20th December, 2021 are as follows: 3 to 15, 17 to 19, 21, 23 to 27, 33, 37, 39, 42, 44 to 47, 49, 50, 54 to 67, 69, 73 to 76, 78, 79, 81, 83, 85 to 94, 96, 97,100 to 102, 105 to 122, 124 to 134, 138 to 141, 145, 146, 148, 149, 154, 158 to 160, 166, 167 to 178, 180 to 188, 190 to 193, 196 to 208, 212, 215, 217, 220 and 228. These items relate to perusal of various documents, drawing of pleadings, service of documents, correspondence with client, court and advocates for other parties, attendances both to the court registry and before the judge as well as some disbursements. The Plaintiff claims that the taxing officer based these awards on wrong provisions of the Advocates Remuneration Order.

19. I have carefully examined the ruling of the taxing officer vis-à-vis the 1st Defendant’s Bill of Costs in the court record. It is very clear to me that the taxing officer based her awards on both the Advocates (Remuneration) Orders of 2009 and 2014. The items were therefore awarded as per the Remuneration Order that was in place as at the time the particular action was taken. In the premises, I have no reason to interfere with the awards on these items and they will remain as taxed.

20. For the foregoing, I find that the Plaintiff’s Reference dated 22nd December, 2021 is merited and is hereby allowed in the following terms:1. The decision of the taxing officer on items (1) and (2) of the 1st Defendant’s Party and Party Bill of Costs dated 21st August 2020 is hereby set aside.2. The bill of costs dated 21st August 2020 is hereby remitted to the taxing officer for reassessment of items (1) and (2) thereon. The reassessment must be based on the relevant principles taking into account the circumstances of the case.3. There shall be orders as to costs.

DATED AND DELIVERED AT NAIVASHA THIS 14TH DAY OF JULY, 2022. G.W.NGENYE-MACHARIAJUDGEIn the presence of:1. Naibei holding brief for Mrs. Rotich for the Plaintiff/Applicant.2. Mr. Weru for the Defendants/Respondents.