[2024] KEHC 16089 (KLR)

Kimojino v Registrar of Titles & another (Petition 406 of 2013) [2024] KEHC 16089 (KLR) (Constitutional and Human Rights) (19 December 2024) (Ruling)

Neutral citation: [2024] KEHC 16089 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition 406 of 2013

EC Mwita, J

December 19, 2024

Between

Joyce Nairesiae Mohamed Kimojino

Petitioner

and

Registrar of Titles

1st Respondent

Commissioner of Lands

2nd Respondent

Ruling

Background 1. The petitioner filed a petition against the respondents in 2013. In a judgment delivered on 6th February 2014, Majanja J, allowed the petition with costs.

2. The petitioner then filed a party and party bill of cost dated 30th December 2016 for Kshs. 4,220, 962. 00. In a ruling dated 1st December 2017, the taxing officer taxed the bill of costs at Kshs. 707, 430. 00

Reference 3. The petitioner was aggrieved and filed this reference challenging the taxing officer’s decision, seeking to have it set aside and the bill of costs remitted back for taxation a fresh. In the alternative, the petitioner asked this court to re-assess the cost.

4. The grounds upon which the reference is predicted are that the taxing officer erred when taxing items 1, 2, 15, 16, 17, 18, 19 and 20 in the bill of costs as well as the total costs allowed. The petitioner contended that the taxing officer failed to appreciate that the petitioner had filed a suit within the meaning of section 2 of the Civil Procedure Act and not an application, hence the taxing officer ought to have used Schedule VI of the Advocates Remuneration Order, 2009 paragraph 1(a) and not paragraph 1 (j). Application of a wrong section substantially affected the decision on quantum causing an injustice.

5. The petitioner further contended that the taxing officer failed to consider the amount or value of the subject matter; submissions regarding the amount or value of the subject matter involved; the complexity of the issues raised and the novel points of law involved in the suit.

6. The petitioner took the view, that the taxing officer erred in law and in fact in failing to consider the amount or value of the subject matter which was over Kshs. 100,000,000. According to the petitioner, the subject matter of the petition was Ngong Township Block 2/633 measuring 0. 0311 Hectares, Ngong township Block 2/634 measuring 0. 04 Hectares, Ngong Township Block 2/654 measuring 0. 0422 Hectares and Ngong Township Block 2/655 measuring 0. 0404 Hectares.

7. The petitioner argued that taking into consideration the above estimated value of the subject matter, had the taxing officer applied to the correct paragraph of the scale, would arrive at a figure of Kshs. 3,121,920.

8. The petitioner relied on Joreth Limited v Kigano & Associates [2002] eKLR to argue the taxing master would be in a position to arrive at a figure of around Kshs. 3,121,920 on instruction fee or more and not the Kshs. 500,000 allowed.

9. On getting up fees, the petitioner relied on paragraph 2 of Schedule VI of the Advocates Remuneration Order of 2009 and argued that although getting up fee is charged at one third of the instruction fees, the taxing officer erred in using the figure of Kshs. 500,000 instead of Kshs. 3,121,920 and arrived at Kshs. 1,040, 640.

10. Regarding items 15, 16, 17, 18, 19 and 20, the petitioner submitted that the applicable law on court attendances is paragraph 7 of Schedule VI of the Advocates Remuneration Order, 2009. The mentions took more than an hour which would warrant Kshs. 5,040 per session and not Kshs. 2,100. The petitioner maintained that the bill of cost was drawn to scale and should have been allowed as drawn.

Response 11. The respondents opposed the reference through grounds of opposition. They contended that the reference is not well founded and a judge will not interfere with costs allowed by a taxing officer because, in his opinion, he would have allowed a higher or lower amount. A judge should only interfere on being satisfied that the error substantially affected the decision on the quantum and that upholding the amount allowed would cause injustice to one of the parties. They relied on Kenya ports Authority v Modern Holdings Ltd (Taxation Reference 4 of 2010) [2010] EACJ 5

12. The respondents argued that as a general rule instruction fee is a matter in the taxing officer’s discretion and courts are reluctant to interfere with that discretion unless it has been wrongly exercised. They relied on Premchand Raichand Ltd v Quarry Services of East Africa Ltd [1972] A 162.

13. The respondents asserted that the taxing officer did not treat the petition as an application but applied the rule set in Joreth Limited v Kigano & Associates [2002] eKLR. The respondents further assertted that the petitioner did not ask the taxing officer to address himself to Schedule VI of the Advocates Remuneration order 2009 paragraph 1(a). Admitting this at this stage will be introducing new evidence ta an appeal stage as decided in Zacharia Okoth Obado v Edward Akong’o Oyugi & 2 others [2014] eKLR.

14. The respondents contended that the question of the amount or value of the subject matter was not in question nor did the petitioner invite the taxing officer to consider the same. The amount claimed was exaggerated.

15. The respondents dispelled the claim of complexity and novelty of the matter. They contended that the matter was not defended and novel and a similar petition had been brought to challenge the same issue in Ephantus Kimotho & 6 others v Attorney General & another [2013] eKLR.

16. The respondents took the view, that the taxing officer’s decision is final unless it can be shown that he acted ultra vires the law to warrant a review. They relied on paragraph 11(1) of the Advocates Remuneration Order and the decision in Green Hills Investments Limited v China National Complete Plant Export Corporation (Complaint) t/a COVEC [2002] KEHC 1132 (KLR).

17. In taxation, the respondents argued, the principles to be followed are, that, costs should not be allowed to rise to such a level as to confine access to the courts to the wealthy; the successful litigant ought to be fairly reimbursed for the costs he had to incur; the general level of remuneration of advocates must be such as to attract recruits to the profession and there be consistency in the award made.

18. The respondents maintain that counsel was not entitled to getting up fee since the matter did not go for trial and the application was not contested to warrant a trial as provided for in Schedule VI of the Advocates (Remuneration) Order subparagraph 2. Reliance was placed on Oyatta & Associated v Nilam Doshi [2013] eKLR.

19. The respondents relied on the decisions in Samuel K. Macharia v Commercial Bank Ltd [2012] eKLR; Phoenix of E.A Assurance Company Limited v Simeon Muruchi Thiga t/a Newspaper Service [2019] eKLR and Owners of Motor vessel Lillian ‘S’ v Caltex Kenya Ltd [1989] eKLR, for the argument that the petitioner did not lodge the requisite Notice of Objection within the statutory timeline. Hence this court lacks the jurisdiction to entertain the reference and should strike it out and not interrogate whether the taxing officer applied the correct principle and took into account the relevant factors, in arriving at the instruction fees.

20. The respondents assert that the taxing officer appreciated the factors to be considered and thereafter applied the same in ascertaining and awarding the requisite instruction fees. The court should only interfere with the decision of the taxing officer where satisfied that the circumstances do exist to warrant such interference. Reliance was placed on the decision in Price & Another v Hilder [1984] eKLR.

Determination 21. I have considered the reference arguments by parties and the decision of the taxing officer. What was before the taxing officer was a party and party bill of costs arising from a petition that had been filed in 2013. As correctly observed by the taxing officer, the applicable law was the Advocates (Amendment) Remuneration Order, 2009.

22. The reference challenged the taxing officer’s decision on items 1, 2, among others. On item 1, the taxing officer allowed instruction fee of 500,000. Getting up fee was allowed at 166,666, a third of instruction fee which the petitioner felt were inordinately low as to cause an injustice and invited this court to interfere and set it aside.

23. I have read the taxing officer’s decision and the judgment dated 6th Faebruary 2014. In the judgment, the court merely issued declarations of violations of the petitioner’s rights under article 47 of the constitution. There was no monetary award.

24. The taxing officer considered the arguments by parties and determined that the applicable Schedule was 6(i) (j) which provided for a minimum of instruction fee of Kshs. 28,000. Having taken into account the relevant factors, including the nature and importance of the case; amount or value of the subject matter; interest of the parties; complexity of the issues raised and the general conduct of the matter, the taxing officer was of the opinion that the matter was not complex and allowed instruction fee of Kshs. 500,000.

25. The law is settled that this court will not interfere with the taxing officer’s decision unless he took into account irrelevant matters or failed to take into account relevant ones and allowed costs so inordinately low or high as to cause an injustice to either party.

26. In other words, this court will not interfere with exercise of the taxing officer’s discretion unless the taxing officer erred in principle. (Premchand Raichand Ltd & another v Quarry Services East Africa Ltd & another [1972] EA 162); Rogan-Kemper v Lord Grosvenor (No.3) [1977] KLR 303; [1977] eKLR: Bank of Uganda v Banco Arabe Espaniol, (Civil Application No. 29 of 2019)).

27. I agree with the position espoused in KANU National Elections Board & 2 others v Salah Yakub Farah [2018] eKLR, where the court observed that:[T]he court will not interfere with the exercise of the taxing master’s discretion unless it appears that such discretion has not been exercised judicially or it was exercised improperly or wrongly, for example, by disregarding factors which she should have considered, or considering matters which were improper for her to have considered, or she had failed to bring her mind to bear on the question in issue, or she had acted on a wrong principle. The court will however interfere where it is of the opinion that the taxing master was clearly wrong or in circumstances where it is in the same position as, or a better position than the taxing master to determine the very point in issue.

28. I have considered the decision of the taxing officer on item 1-instruction fee. There is no doubt on the applicable R Advocates Remuneration Order. The tyaxing officer appreciated that the Remuneration Order allows a minimum of Kshs. 28,000, she exercised judicial discretion and increased the amount of instruction fee to Kshs. 500,000. I do not see any error on the part of the taxing officer on this item.

29. Getting up fee is a third of instruction fee and the taxing officer properly applied this formular and allowed Kshs. 166,666. I find no error here too.

30. Regarding attendances, the taxing officer considered items 15,16, 17,18,19 and 20 which had been objected to. The taxing officer agreed that the amount charged was on the higher side and taxed them at Kshs. 2,100 each. The petitioner has taken issue with this arguing that the attendance took more than one hour and therefore the items should have been taxed as drawn.

31. Items on attendance are evidence based, more so where one argues that the attendance took more than one hour. It was for the petitioner to satisfy the taxing officer that the attendances took more than one hour which was not done. Before this court, the petitioner did not show why this court should interfere with a finding of fact that the attendances were on the high side or that the attendances could not have taken more than one hour as argued. Here too, I find no error on the part of the taxing officer.

32. In the end, I am unable to agree with the petitioner that the taxing officer committed an error of law or that the amount allowed in item 1 was so law as to amount to an error.

33. Consequently, and for the above reasons, the reference is declined and dismissed. Each party will bear their own costs.

DATED AND DELIVERED AT NAIROBI THIS 19THDAY OF DECEMBER 2024E C MWITAJUDGE