[2022] KEHC 75 (KLR)

Kimani Kagwima & Co. Advocates v Jimtec Services Limited (Miscellaneous Civil Application E11 of 2020) [2022] KEHC 75 (KLR) (4 February 2022) (Ruling)

Neutral citation number: [2022] KEHC 75 (KLR)

Republic of Kenya

In the High Court at Nyeri

Miscellaneous Civil Application E11 of 2020

A Mshila, J

February 4, 2022

Between

Kimani Kagwima & Co. Advocates

Respondent

and

Jimtec Services Limited

Applicant

Ruling

1. The application is brought by way of Amended Chamber Summons dated the 2/02/2021 and is premised Section 1A, 1B and 3A of the Civil Procedure Act and Rule 11(1) and (2) of the Advocates Remuneration Order 2009; the applicant seeks the following orders;i.Spentii.That the ruling of the Hon. Mercyline Nafula Lubia (DR) delivered on the 19/01/2021 on the taxation of the Advocate/Client Bill of Costs be set aside and vacated as relates to the specified items taxed;iii.That this Honorable Court be pleased to issue a stay of execution of the Ruling of the Hon. Mercyline Nafula Lubia (DR) delivered on the 19/01/2021;iv.That this Honorable Court be pleased to refer the Bill for taxation before a different taxing officer/deputy registrar.v.That this Honorable Court make such further orders in the interest of justice as it may deem just and fit;vi.The cost of the application be provided for.

2. The parties were directed to canvass the application by filing and exchanging written submissions; hereunder is a summary of the parties rival submissions.

Applicant’s Case 3. The application is premised on the grounds on the face of the application and on the Supporting Affidavit made on the same date by James Mwaura a director of the Applicant who deponed that the taxing master erred in law by taxing the Bill of Costs using the wrong schedule. The Bill of Costs dated 17/11/2020 had originated from the Chief Magistrates Court at Nyeri CMCC No.335 of 2016 and as such the applicable law for the purposes of taxation was Schedule 7 of the Remuneration Order, 2014 and not Schedule 6 which the respondent had used in assessing the costs. Case law relied on by Applicant; Antony Thuo Kanai t/a A.Thuo Kanai Advocates vs John Ngigi Nganga [2014] eKLR to support his contention.

4. The Applicant submitted that the following items ought to have been taxed off as they are not provided for in Schedule 7; the items nos. 2, 3, 6, 8, 9, 12, 15, 17, 18, 19, 26, 29,30, 34, 38, 42, 44, 45, 46, 48, 49, and 51; and the taxing master further erred in principle in overcharging the following items;i.Item 1 Instruction fees Kshs.90,000/- ought to have been charged at Kshs.65,000/-ii.Items 4 and 5 have been double charged as the pleadings were delivered at the same venue at the same time;iii.Item 10 and 52 hearing of an application ought to be Kshs.1,400/- eachiv.Item 32 hearing of the main suit ought to be Kshs.2,100/-v.Item 40 a mention ought to be Kshs.1,400/-;vi.Item 53 hearing of a Preliminary Objection ought to be Kshs.1,400/-

5. The taxing master misdirected herself in allowing disbursements without calling for proof which was contrary to Section 74 of the Civil Procedure Act. Pursuant to Section 3(4) and 107 of the Evidence Act it was upon the Respondent to avail receipts or vouchers touching on disbursements itemized as nos. 54 – 67.

6. The Applicant paid to the Respondent Kshs.74,000/- as legal fees and this fact has not been denied by the Respondent. Therefore this amount ought to have been deducted from the said amount. Further the Respondent admitted having been paid Kshs.180,000/- and based on the admission by the Respondent that the taxing master ought to have deducted the amount that was not in dispute which was Kshs.96,000/-. Also not disputed is the fact that the Applicant had paid to the respondent a sum of Kshs.170,870/ and this amount ought also to have been deducted from the costs the respondent contends they are entitled to.

7. For those reasons the Applicant prayed that the taxing master’s decision be set aside and the Bill of Costs be re-adjusted, or re-assessed and or sent back for re-taxation.

Respondent’s Case 8. In response the Respondent opposed the application and submitted that the application does not satisfy the criteria for setting aside a Bill of Costs and that the application ought to be dismissed and judgment be entered in accordance with Section 51(2) of the Advocates Act; case law relied on Visser vs Gubb cited in KTK Advocates vs Baringo County Government [2017] eKLR; the respondent reiterated that the applicant had not given sufficient reasons to warrant the interference with the taxing masters award as it had failed to give reasons as to why the taxing masters decision was wrong; the applicant had also failed to give reasons as to why the taxing masters award should be set aside and/ or vacated. Case law relied on to support its contention Bank of Uganda vs Banco Arabe Espanol SC Civil Application No.23 of 1999 (Mulenga JSC) and Republic vs Ministry of Agriculture & 2 Others [2006] cited in KTK Advocates vs Baringo County Government [2017] eKLR.

9. The Respondent further submitted that the taxing master acted judiciously in exercising her discretion in regard to the general principles applicable in awarding the costs herein. The Applicant did not meet the conditions as set out in the case law and as such the application is misconceived and an abuse of the court process. The Preliminary Objection was withdrawn with no order as to costs and the Respondent prayed that the application be dismissed.

Issues For Determination 10. After reading the supporting affidavit filed herein this court finds two issues for determination which are;(a)Whether the taxing master applied the wrong principles during the taxation of the Bill of Costs? and(b)Whether there are sufficient grounds to warrant interference with its decision?

Analysis 11. The undisputed facts are that the Applicant had engaged the services of the Respondents in CMCC No.335 of 2016 Jimtec Services Ltd vs The Department of Health Services, County Government of Nyeri & The County Government of Nyeri. It is also not in dispute that the Bill of Costs dated 17/11/2020 emanated from proceedings in that case. The question then arises as to whether the Deputy Registrar had the jurisdiction to tax a Bill of Costs relating to a matter determined in the Chief Magistrates Court.

12. The locus classicus on jurisdiction is the celebrated case of Owners of Motor Vessel ‘Lilian S’ vs Caltex Oil (Kenya) Ltd [1989] KLR 1 where the Court of Appeal held;‘I think it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything, without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.’

13. The legal position is that costs in the subordinate courts matters are assessed not taxed. The assessment is provided for under Schedule VII of the Advocates Remuneration Order which is specifically titled ‘costs of proceedings in subordinate courts’.Tthis position is fortified by Paragraph 51 of the Advocates Remuneration Order which reads as follows;‘Subject to paragraph 22 the scale of costs applicable to proceedings in subordinate courts (other than Kadhi Courts) is set out in Schedule VII.’

14. This position was upheld in the case of Angelo Gitonga vs Angelo Gitonga & Another [2010] eKLRwhere the court held;‘….there is no provision in the Advocates Remuneration Order for taxation in subordinate courts. A practice is however arising where parties in the subordinate court file laborious and detailed bill of costs and then engage the magistrate in taxation. That in my view is uncalled for and should be discouraged, subordinate courts party and party costs should be assessed following the provisions of Schedule VII of the Order…’

15. In this instance the Respondent provided legal services to the Applicant in the subordinate court. The firm then filed its Bill of Costs in the High Court and a Ruling was delivered on 19/01/2021. The record is devoid of any letter, or notice or communication to the applicant/client herein on an election made by the Respondent to have its Bill of Costs taxed under Schedule V of the Advocates Remuneration Order as provided under Paragraph 22(1) of the aforesaid Order hence the applicable schedule is Schedule VII.

16. Paragraph 22(1) of the Advocates Remuneration Order reads as follows;‘In all cases in which any other schedule applies an advocate may, before or contemporaneously with rendering a bill of costs drawn as between advocate and client, signify to the client his election that, instead of charging under such schedule his remuneration shall be according to Schedule V, but if no election is made his remuneration shall be according to the scale applicable under the other schedule.’

17. Applying the above principles of law the first mistake made by Respondent is that it ought to have had its costs assessed in the subordinate court and ought not to have filed a Bill of Costs in the High Court. This court reiterates the applicable law found at Paragraph 22(2) of the Advocates Remuneration Order which allows an Advocate to opt out of a Schedule and to make an election to be remunerated wholly under Schedule V. The only condition set is that the advocate must notify the client in advance or at the time of filing its Bill of Costs.Ttherefore the correct and applicable schedule in the absence of any election would have been Schedule VII.

18. The taxing master instead proceeded to exercise her discretion unreasonably, unfairly, and injudiciously by applying Schedule VI; and therefore, applied wrong principles of law by failing to apply Schedule V to the items and thereby arrived at an erroneous conclusion on all the items taxed.

19. It is trite law that the High Court can only interfere with the decision of the taxing master in cases where there is in the case of Republic vs Ministry of Agriculture & 2 Others ex-parte Muchiri W’Njuguna [2006] eKLR where the principles were enunciated as follows;‘The taxation of costs is not a mathematical exercise; it is entirely a matter of opinion based on experience. A court will not, interfere with the award of a taxing officer, particularly where he is an officer of great experience, merely because it thinks the award somewhat too high or too low; it will only interfere if it thinks the award so high or so low as to amount to an injustice to one party or the other…… The court cannot interfere with the taxing officer’s decision non taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was manifestly excessive as to justify an influence that it was based on an error of principle.’

20. The taxing master was bound by the law and had no power to oust or completely disregard a legal provision of law and thus proceed to have the Bill of Costs taxed under Schedule 6.

21. For those reasons this court is satisfied that the taxing master erred in principle in ignoring and/or disregarding the relevant provisions of the law and that there is good reason for this court to interfere with the taxing masters’ decision.

Findings And Determination 22. In the light of the foregoing this court makes the following findings and determinations;i.The application is found to have merit and it is hereby allowed. the taxing master is found to have applied the wrong principles in taxing the Bill of Costs;ii.The decision of the taxing master dated the 19/01/2021 is hereby set aside in its entirety;iii.The Bill of Costs is hereby remitted to the subordinate court for assessment of costs;iv.There shall be no order as to costs.Orders Accordingly.

DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NYERI THIS 4THDAY OF FEBRUARY, 2022. HON. A. MSHILAJUDGEIn the presence of;Wanjiru holding brief for Kimani for the RespondentNo appearance for McRonald for the ApplicantKinyua--------------------Court Assistant