[2023] KEHC 27272 (KLR)

Kenya Anti-Corruption Commission v Mututho & another (Anti-Corruption and Economic Crimes Civil Suit 25 of 2016) [2023] KEHC 27272 (KLR) (Anti-Corruption and Economic Crimes) (1 November 2023) (Ruling)

Neutral citation: [2023] KEHC 27272 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Anti-Corruption and Economic Crimes Civil Suit 25 of 2016

NW Sifuna, J

November 1, 2023

Between

Kenya Anti-Corruption Commission

Plaintiff

and

John Ngenga Mututho

1st Defendant

Countyside Supplies Ltd

2nd Defendant

Ruling

1. By a Chamber Summons dated 1st August 2022, the Plaintiff filed this Taxation Reference, challenging the taxation decision of Hon Ngang’ara Osoro delivered on 31st May 2022 on the Defendant’s Party and Party Bill of Costs dated 9th November 2021, taxing the Bill at Ksh 5,072,544=. The Plaintiff was particularly dissatisfied by the taxation on items 1 (Instruction Fees) and 2 (Getting Up Fees), and is by this Reference seeking to set aside the same and have the two items taxed afresh by a taxing officer other than the said Hon Osoro. That in the alternative, I be pleased to remit the Bill of Costs dated 9th November 2021 for taxation in its entirety or with appropriate directions.

2. The Reference is based on the following grounds stated in the said Chamber Summons and is supported by the Supporting Affidavit of Ben Murei:a.That the awarded Instruction Fees (Item 1) and Getting Up Fees (item 2) of the Bill was based on irrelevant considerations/reasons other than those set out in schedule 6 of the Advocates Remuneration Order (ARO) 2014, where Instruction Fees should be determined from the pleadings.b.That the taxing officer erred in principle by disregarding the value of the subject matter of Ksh 41,371,515/15 stated in the Plaintiff’s Plaint dated 8th December 2005. c.That it is only where the value of the subject matter is neither discernible nor determinable from the pleadings, the judgment or the settlement, as the case may be, that the taxing officer is permitted to use his discretion to assess Instruction Fees.d.That as a consequence of the above, the taxing officer erroneously arrived at the Instruction Fees and Getting Up Fee of Ksh 3,600,000= and Ksh 1,200,000=, respectively.e.That the taxation was skewed in favour of the Defendants and was manifestly high and excessive; and that the gross tabulation of the Bill was higher than the total amount of Ksh 3,949,416= the Plaintiff had stated in the said Bill.f.That should the award be allowed to stand, it will make the Plaintiff’s tracing and recovery efforts a costly affair and thereby detrimental to public interest, yet corruption in this country having reached pandemic proportions, tracing and recovery is a useful tool in restoring public property.g.That the Plaintiff’s mandate should not be at a great cost to the tax payer.h.That the award of costs should not lead to the unjust enrichment of the defendants.

Determination 3. The Reference, which was opposed by the defendants, proceeded by way of written submissions. The Plaintiff’s Submissions filed in support of the Reference are dated 18th October 2021, while the defendants’ submissions are dated 27th October 2023.

4. I have perused the Application and its Supporting Affidavit as well as the defendants’ Replying Affidavit sworn by John Njenga Mututho the 1st Defendant in response. I have also considered the parties’ said filed rival submissions, as well as the relevant law (principally the ARO 2009 and ARO2009) and applicable legal principles. I have also perused the defendants’ subject Bill of Costs as well as the Taxing Officers impugned Ruling thereon.

5. In R v. Minister For Agriculture & 2 Others Ex Parte Samuel Muchiri Njuguna [2006] eKLR Ojwang J (as he then was) stated that a Judge will not interfere with a taxing officer’s decision unless it is shown that the decision was based on an error of principle, or the fee awarded was manifestly excessive as to justify an interference.

6. After thoroughly analyzing the record of the proceedings before before the taxing officer and the material placed before me, I have reached the conclusion that taxation and the impugned taxation decision of Hon Nyanga’ra Osoro are erroneous and unsupported by law and evidence, hence must set aside.

7. For instance the number of hearings and mentions and the amounts allowed on those attendances were not only absurd but also excessive. From the ruling said Ruling, the Taxing Officer did not state the AROshe applied, hence the same is unknown as it is not stated in the ruling. It can therefore only be speculated or guessed.

8. Failure by a Taxing Officer to state the AROapplied is in my polite view, a fatal omission for which the decision cannot stand. This being a court of law, its analysis and decisions should be supported by facts and the law, hence it cannot be in the habit of speculation and guesswork.

9. For the aforegoing reasons, I hereby allow this Reference and set aside the said Taxation decision delivered by Hon Nyang’ara Osoro on 31st may 2022 on the defendant’s Party and Party Bill of Costs dated 9th November 2021. As costs follow the event, the costs of this Reference shall be borne by the defendants. I further order that the said Bill of Costs be taxed afresh by another taxing officer.

DATED AND DELIVERED AT NAIROBI THIS 1ST DAY OF NOVEMBER 2023. PROF (DR) NIXON SIFUNAJUDGE