[2018] KEHC 4759 (KLR)
The court found that the Deputy Registrar failed to provide adequate reasons for awarding an instruction fee of Kshs. 13,500,000, especially given that the matter was not complex and the Advocates (Remuneration) Order provides clear guidance on such fees. The lack of explanation and the superficial treatment of the...
Source-derived case information.
- Citation
- [2018] KEHC 4759 (KLR)
- Parties
- Applicant: Kenya Power & Lighting Company Ltd; Respondent: African Merchant Assurance Company Ltd
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 92 of 2012
- Procedural Posture
- Chamber Summons / Ruling on Objection to Taxation of Bill of Costs
- Outcome
- Objection to taxation allowed; taxation set aside; matter remanded for fresh taxation; costs of objection awarded to Applicant.
- Legal Topics
- Taxation of Costs, Advocates Remuneration Order, Instruction Fees, Objection to Taxation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Power & Lighting Company Ltd
Applicant
African Merchant Assurance Company Ltd
Respondent
Procedural Posture
Chamber Summons / Ruling on Objection to Taxation of Bill of Costs
Legal Issues
- 1 Whether the Deputy Registrar erred in taxing the instruction fees at Kshs. 13,500,000.
- 2 Whether the entire bill of costs was properly taxed at Kshs. 13,971,700.
- 3 Whether the Advocates (Remuneration) Order was properly applied in the taxation.
Ratio Decidendi
The court found that the Deputy Registrar failed to provide adequate reasons for awarding an instruction fee of Kshs. 13,500,000, especially given that the matter was not complex and the Advocates (Remuneration) Order provides clear guidance on such fees. The lack of explanation and the superficial treatment of the bill of costs rendered the taxation unsustainable. Consequently, the court set aside the taxation and remanded the matter for fresh taxation before a different taxing master.
Court Disposition
Objection to taxation allowed; taxation set aside; matter remanded for fresh taxation; costs of objection awarded to Applicant.
Orders
- Taxation dated 28th July, 2017 is set aside.
- Matter remanded to Malindi Chief Magistrate’s Court for fresh taxation of the bill of costs dated 19th January, 2017 by a taxing master other than Nyamu Wandia.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
CIVIL SUIT NO. 92 OF 2012
KENYA POWER & LIGHTING COMPANY LTD......APPLICANT/DEFENDANT
VERSUS
AFRICAN MERCHANT ASSURANCE
COMPANY LTD...............................................................RESPONDENT/PLAINTIFF
RULING
[CHAMBER SUMMONS DATED 1ST SEPTEMBER, 2017]
1. Through the Chamber Summons application dated 1st September, 2017 brought under Regulation 11(1) and (2) of the Advocates Remuneration Order, the Applicant, Kenya Power & Lighting Company Limited objects to the Deputy Registrar’s ruling dated 28th July, 2018 in respect of Africa Merchant Assurance Company Limited’s bill of costs dated 19th January, 2017. The grounds of objection are:
“1. THAT the learned taxing master erred in taxing the instructions fees at kshs. 13,500,000.
2. THAT the Learned taxing master erred in not considering the submissions presented before her and/or treating the [bill] superficially thereby taxing the entire bill of costs at kshs. 13,971,700. ”
2. The application is supported by an affidavit sworn by advocate Michael Oloo in which he avers that the objection is based on the grounds on the face of the application.
3. The Respondent, African Merchant Assurance Company Limited opposed the Application through a replying affidavit sworn on 3rd March, 2018 by advocate Charles Githitu Waithima. The Respondent’s case as presented through the said affidavit is that the objection has no legal basis as the taxation is sound and unshakeable. It is the Respondent’s case that the provisions of the Advocates (Remuneration) Order are not binding on the taxing master but are merely a guide. Further, that the taxed amount varies and depends on the circumstances of each case. According to the Respondent, the amount charged on each item was clearly explained and justified.
4. When the application came up for hearing on 16th April, 2018, the advocates for the parties told the court that they had agreed to rely on the submissions they had filed before the Deputy Registrar.
5. I have perused the submissions filed before the Deputy Registrar. I have also looked at Schedule Six of the Advocates (Remuneration) Order. Item 1 provides for instruction fees to be awarded in certain circumstances.
6. In her ruling delivered on 28th July, 2017 the Deputy Registrar indicated that the bill was drawn to scale. Judgement was entered for the Respondent against the Applicant in the sum of Kshs. 71,527,412. The Deputy Registrar did not explain why she authorized an instruction fee of Kshs. 13,500,000 for such a claim. The matter was not a complex one and the Advocates (Remuneration) Order is clear on what should be awarded as instruction fees.
7. I therefore find that the objection to the taxation has merit. The taxation dated 28th July, 2017 is set aside. This matter is remanded back to Malindi Chief Magistrate’s Court for fresh taxation of the bill of costs dated 19th January, 2017 by any taxing master apart from Nyamu Wandia.
8. Owing to the fact that this is a 2012 matter, the advocates for the parties are directed to have the matter listed for taxation on priority basis. The costs of the objection proceedings are awarded to the Applicant.
Dated, signed and delivered at Malindi this 26th day of July, 2018.
W. KORIR,
JUDGE OF THE HIGH COURT