[2019] KECPT 61 (KLR)
The Tribunal held that the subject matter was ascertained at the beginning of the suit as Kshs.11,250,000, as per the pleadings. The dismissal of the suit did not make the subject matter unascertainable. The defence was successful, and the respondent had to put in significant effort to defend the claim. Therefore,...
Source-derived case information.
- Citation
- [2019] KECPT 61 (KLR)
- Parties
- Claimant: Kenpipe Co-operative Saving and Credit Society; Respondent: Daniel Githinji Waiganjo
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 223 of 2011
- Procedural Posture
- Bill of Costs / Taxation Ruling
- Outcome
- Bill of costs taxed at Kshs.118,645 in favour of the respondent.
- Legal Topics
- Taxation of Costs, Remuneration Order, Subject Matter Ascertainment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenpipe Co-operative Saving and Credit Society
Claimant
Daniel Githinji Waiganjo
Respondent
Procedural Posture
Bill of Costs / Taxation Ruling
Legal Issues
- 1 Whether the subject matter for taxation was ascertained despite dismissal of the suit.
- 2 What is the reasonable instruction fee payable under the Remuneration Order Schedule 11 Paragraph 8.
- 3 Whether other items in the bill of costs should be allowed or taxed off.
Ratio Decidendi
The Tribunal held that the subject matter was ascertained at the beginning of the suit as Kshs.11,250,000, as per the pleadings. The dismissal of the suit did not make the subject matter unascertainable. The defence was successful, and the respondent had to put in significant effort to defend the claim. Therefore, the instruction fee of Kshs.100,000 was reasonable in the circumstances, considering the substantial amount involved and the complexity of the matter. Other items in the bill of costs were either allowed, reduced, or taxed off based on sufficiency of proof and reasonableness. The bill of costs was taxed at Kshs.118,645.
Court Disposition
Bill of costs taxed at Kshs.118,645 in favour of the respondent.
Orders
- Item 1 instruction fee allowed at Kshs.100,000.
- Items 2, 6, 8, and 23 taxed off.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI
TRIBUNAL CASE NO. 223 OF 2011
KENPIPE CO-OPERATIVE SAVING AND CREDIT SOCIETY...CLAIMANT
VERSUS
DANIEL GITHINJI WAIGANJO.....................................................RESPONDENT
RULING
The matter for determination is a bill of cost dated 17. 4.19.
The parties canvassed the same by way of written submissions. The Respondent/applicant filed written submissions on 30. 7.19 and submitted that the subject matter of the claim was refund of Kshs.11,250,000/=.
That the instructions fees was based on paragraph 8 schedule 11 and Kshs.100,000/= was reasonable since the matter was complex and voluminous documents were filed.
The claimant filed written submissions on 14. 6.19 and contends item 1.
That since the suit was dismissed, the subject matter became unascertainable based on this, the amount under item 1 should be taxed at Kshs.40,000/=.
We have noted that the matter at the beginning of the suit was Kshs.11,250,000/- as per the pleadings. The claimant failed to prove their case on the required standard hence the matter was dismissed. The fact that the matter was defended and dismissed proves that the defence raised was good enough to have the dismissal and to win the matter. In this case, the respondent must have put in a lot of effort to counter the case as filed and succeeded in defending the subject matter as filed. Since at the onset, the subject matter was ascertained, the dismissal cannot and should not tender the subject matter ascertainable as submitted by the claimant. Hence the subject matter remains ascertained.
The amount of money involved was substantial hence this brings the nature and importance of the cause on a higher level of the instances of fraud, theft and illegality had been proved, then the Respondent would have been found liable. This made the defence of the claim of important and the amount sought in item 1 is within the recommended amount as per the Remuneration order schedule 11 Paragraph 8.
In light of the above and having considered the submissions of both parties, we find the item 1 Kshs. 100,000/= reasonable in the circumstances.
For item 2 and 6, 8 and 23 the same are taxed off. Item 3 is an attendance and it is awarded as it is, also item 5,9,10.
Item 4,7,11,13 and 22 are allowed at Kshs.1400/= each for service.
Items 12 is allowed at Kshs.4000/= while item 14 is reduced to Kshs.1200/= and same is awarded for item 15 and 17 each. Item 16 is reduced to Kshs.500/= and the same amount is awarded for items 18,19,20 and 21.
Court fees are awarded as prayed. The out of pocket expenses is not supported by any documents. There is also justification for the increase by ½ (half) and the 16% VAT.
We therefore tax the bill of costs at Kshs.118,645/=.
Read and delivered in open court, this 7th of November 2019.
In the presence of:
Applicant /Respondent: Mbuthia holding brief for Kamau for the Respondent.
Respondent/Claimant:Wangui holding brief for Milimo for Claimant.
Court Assistant:Leweri and Buluma.
B.Kimemia - Chairman-Signed.
R.Mwambura - Member-Signed.
P.Swanya - Member-Signed.