[2023] KEHC 25070 (KLR)

Kirimi & another v Standard Digital & another (Civil Case 9 of 2019) [2023] KEHC 25070 (KLR) (3 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25070 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Case 9 of 2019

EM Muriithi, J

November 3, 2023

Between

Joel Mutuma Kirimi

1st Plaintiff

Sharon Chepkorir Koskei

2nd Plaintiff

and

The Standard Digital

1st Defendant

The Standard Group Limited

2nd Defendant

Ruling

1. Before the court are two references one by the defendants dated 8/3/2021 and the other by the plaintiffs dated 10/3/2021 from a taxation by the Deputy Registrar under Rule 11 of the Advocates Remuneration Order seeking distinctive orders against the determination of the taxing officer. By its order of 15/3/2023, this Court directed that the two references be heard together by way of written submissions, and the plaintiffs and the defendants subsequently filed their respective submissions on 3/5/2023 and 5/5/2023.

2. The Deputy Registrar of the Court is empowered to tax costs as follows:“10. Taxing officerThe taxing officer for the taxation of bills under this Order shall be the Registrar or a district or deputy registrar of the High Court or, in the absence of a registrar, such other qualified officer as the Chief Justice may in writing appoint; except that in respect of bills under Schedule IV to the order the taxing officer shall be the registrar of trade marks or any deputy or assistant registrar of trade marks. [L.N. 56/1972, S. 3]”

3. Significantly, the Deputy Registrar made a ruling delivered on 25/2/2021, in material part, as follows:“I have carefully perused the court record and I have come across the plaintiffs' joint bill of costs dated 26th June 2020 and filed in court on 29'h June. It is surprising that the plaintiffs subsequently changed their minds and sought to file separate bills.Paragraph 71 of the Advocates Remuneration Order is titled "Bills not to be altered after being lodged" and reads as follows:"No addition or alteration shall be made in a bill of costs by the party submitting the same after the bill has been lodged for taxation except by consent of the parties or by permission or direction of the court or taxing officer. /IThis paragraph is self-explanatory. I have perused the court record and I have not come across any consent between the plaintiffs and the defendants as regards the alteration of the bill of costs dated 26th June 2020. I have also not come across any proceedings before court permitting the plaintiffs to alter their bill of costs dated 26th June 2020. It is therefore my finding that the filing of the 1st plaintiff's bill of costs dated 3rd November 2020 and the 2nd plaintiff's bill of costs dated 4th November 2020 both filed in court on 17th November was not only erroneous but also in total contravention of Paragraph 71 of the Advocates Remuneration Order as Quoted above. The filing of the new bills amounts to an alteration which can only be effected in the manner provided above.The effect of the above finding is that the pt plaintiff's bill of costs dated 3'd November 2020 and the 2nd plaintiff's bill of costs dated 4th November and both filed in court on 17th November 2020 are struck out for being irregularly filed.It is also irregular for an advocate to file separate bills for each party they represent in the same cause. The advocate should rather file a consolidated bill of costs. However, such an advocate is entitled to charge instructions fees for each of the parties they represent as the receiving and execution of instructions are two different things. The instructions may be executed separately or in one transaction. It is however not lost upon the plaintiffs as they have recourse to their bill of costs dated 26th June 2020 and filed on 29th June 2020. I have had the opportunity to go through the said bill of costs and I have noted that it is the same as the 1" plaintiff's bill dated 3rdNovember 2020 which has been struck out. This is the bill that I will consider and I will also adopt the 1stplaintiff's submissions and the submissions by the defendants.”[emphasis added]

Objections 4. A party dissatisfied with the decision of the Taxing Officer may file an objection to the judge of the High Court and thereafter an appeal to the Court of Appeal under Rule 11 of the Advocates Remuneration Order, which provides as follows:“11. Objection to decision on taxation and appeal to Court of Appeal(1)Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.(2)The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection.(3)Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.(4)The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) far the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired. [L.N. 8/1965, Sch.]”

5. The defendants’ objection by reference by Chamber Summons expressed to be brought under Paragraph 11(2) of the Advocates (Remuneration) Order, 2009 Advocates' Act, Chapter 16 of the Laws of Kenya dated 8/3/2021 is as follows“1. The Learned Taxing Master's decision dated 25th February, 2021 taxing Item 27 and 28 (Drawing & Copies) of the Plaintiffs/ Respondents' Bill of Costs dated 26th June, 2020 in the sum of Kshs. 9,180/= and Kshs. 5,100/= respectively be hereby set aside;2. The Learned Taxing Master's decision dated 25th February, 2021 taxing Item 30 (Perusal) of the Plaintiffs/ Respondents' Bill of Costs dated 26th June, 2020 in the sum of Kshs. 49,500/= be hereby set aside;3. The Learned Taxing Master's decision dated 25th February, 2021 allowing 16% VAT in the Plaintiffs/ Respondents' Bill of Costs dated 26th June, 2020 in the sum of Kshs. 109,831. 84/= be and is hereby set aside;4. The Plaintiffs' /Respondents' Bill of Costs be and is hereby remitted to a different Taxing Master for taxation; and5. The Defendants/ Applicants be awarded costs of the Reference.

6. It was based on grounds set out in the Chamber Summons as follows:“On The Grounds That:1. The Court entered Judgment on 18th June, 2020 in favour of each of the Plaintiffs for the sum of Kshs. 4,000,000/= and K hs. 400,000 in lieu of an apology. The Court also awarded interest and costs at Court rates;2. The Plaintiffs/Respondents accordingly filed their Bill of Costs on 29th June, 2020 and thereafter filed the separate Bills of costs dated 3rd and 4thNovember, 2020 respectively. The Learned Taxing Master struck out the separate Bills of costs as the Plaintiffs/Respondent neither recorded a consent nor sought leave of Court to file the said Bill. The Court proceeded lo tax the original Bill of costs dated 29th June, 2020;3. The Learned Taxing Master in its Ruling electronically delivered on 25thFebruary, 2021 taxed the following items as indicated below:a.Item 27 and 28 (Drawing & Copies) in the sum of Kshs. 9,180/= and Kshs. 5,100/= respectivelyb.Item 30 (Perusal) in the sum of Kshs. 49,500/=c.16% VAT in the sum of Kshs. 109,831. 84/=4. The Learned Taxing Master's taxation of the Drawing of the Plaintiffs' written submissions and making 4 copies thereof in the sum of Kshs. 9,180 and Kshs. 5,100/ = respectively was a grave error in principle as the Taxing Master failed to take into consideration the correct number of folios and prescribed amount as provided in the Advocates Remuneration Order, 2014;5. The Learned Taxing Master's taxation of the Perusal of the Defendants' written submissions dated 9lh June, 2020 accompanied by their list and bundle of authorities in the sum of Kshs. 49,500/= was an error of principle as the Taxing Master failed to take into account the number of folios and prescribcd amount as provided in the Advocates Remuneration Order, 2014;6. The Learned Taxing Master's decision allowing 16% as VAT because the counsel is an agent of the taxman is an error of principle as the Bill of Costs is between parties and not an advocate and a client;7. It is in the interets of justice that this Reference be allowed with cost to the Defendants/ Applicants.”

7. The Plaintiffs’ reference dated 10/3/2021 by Chamber Summons expressed to be made “Pursuant to paragraphs 11(1) and (2) and 79 of the Advocates Remuneration Order (Rev. 2017) Section 51 (1) and (2) of the Advocates Act (Cap 61 laws of Kenya). Order 1 Rule 23 of the Civil Procedure Rules. 2010 and all other enabling provisions of the law” was broader on the points of objection and sought orders as follows:“a)That this Honourable Court be pleased to review and/or set aside the decision of the learned Taxing Master issued on 25th February and on the 1st Plaintiff Bill of Costs dated 3rd November 2020 and the 2nd Plaintiffs Bill of Costs dated 4th November 2020 and to substitute the same with a proper finding.b)That this Honourable Court be pleased to review/set aside the erroneous findings in law by the taxing master on the non-existent Bill of Costs dated 26th June 2020 and substitute it with a proper finding.c)That the cost of this reference be provided for.”

8. The grounds of the reference were set out in Chamber Summons as follows:“1. That the learned Taxing Master errored in law and fact in purporting to make a finding on a Bill of cost that was withdrawn and not submitted to by either party in this suit.2. That the learned Taxing Master did not have the jurisdiction to make any finding on the Bill of cost dated 26th June 2020 as it was already withdrawn and neither party had raised an issue on the same.Without prejudice to the foregoing:-3. That the learned Taxing Master erred in law by awarding Kshs188. 000 as instruction fees for each Plaintiff without taking into consideration the nature and importance of the cause, the Interest of the parties, general conduct of proceedings and other relevant circumstances.4. That with regard to the foregoing, taxing the instruction fees at Kshs188,000 per Plaintiff, the learned Taxing Master exercised his discretion wrongly.5. That the learned Taxing Master erred in law and fact in estimating that the number of folios per page were three in this charged in items 3. 4. 6, 9, 12. 14. 27, 28. 30 and 31 of the 1st and 2nd Plaintiffs Bill of Costs dated 26th June 2020 whereas the Applicants had provided the actual folios for the said items.6. That the learned Taxing Master erred in law by failing to limit his discretion as to whetherthe folios were reasonable or not.7. That the learned Taxing Master erred by not taking into consideration the accommodation receipts attached to the Bills of costs dated 3rd and 4th November 2020 charged under items 20, 22, 23 and 25. 8.That the learned Taxing Master errored in law and fact in failing to consider paragraph 9(1) of Schedule VI of the Advocates Remuneration Order. 2014 in taxing items 5, 11,13, 17, 19 and 25 of the 1st and 2nd Plaintiffs' Bill of costs dated 26th June 2020. 9.That the learned Taxing Master erred in failing to tax the court attendance for Pre-trial conference which has been listed as item number 16 on the Bill of Costs dated 26th June 2020. 10. That the award of the learned Taxing Master is low as to amount to an injustice to the 1st and 2nd Plaintiffs who instructed their advocates as Individuals.”

9. The parties then filed their respective submissions as aforesaid.

Issue for determination 10. The court considers that two questions arising from the pleadings and submissions, namely whether he taxing officer was right in striking out the two Bill of Costs filed by the plaintiffs and whether could, subsequently, validly proceed with the withdrawn bill of Costs in the names of the two plaintiffs must be dealt with preliminarily as decision thereon determines the progress of the court to consideration of objections on the itemised particulars of the Bill of Costs.

11. On this question of validity of two Bills of Costs for parties (the plaintiffs) being represented by the same advocate, the defendants cited the High Court (DA Onyancha, J.) decision in Desai Sarvia & Pallan Advocates v Tausi Assurance Company Limited (2015) eKLR applying Rule 62 of the Advocates Remuneration Order, and held:“A reading of the above provision of the law shows that the taxing officer has the discretion to consider the Bill of Costs or party to party costs where necessary or proper, and where they were unnecessarily or improperly incurred, the Taxing Officer should disallow them.In the instant case it is not disputed that the Applicant was all at once instructed by the Respondent to act for both Defendants. It is not also disputed that the Applicant herein as a result filed one set of pleadings to defend both Defendants. In the view and finding of the court the instructions fees can only be claimed in respect of only that one set of proceedings. The Taxing Officer therefore, correctly exercised his discretion under Rule 62 by disallowing the second Bill of Costs since it was unnecessary and unjustified. In the circumstances, this appeal has no merit and is hereby dismissed with costs. Orders accordingly.”

12. However, on appeal to the Court of Appeal in Desai Sarvia & Pallan Advocates v Tausi Assurance Company Limited [2017] eKLR (Visram, Karanja & Koome (as she then was), JJ. A) the Court of Appeal upheld the decision of the Court but on different grounds that the taxing officer had properly invoked rule 16 of the Advocates Remuneration Order and held that Rule 62 applied elsewhere as follows:“Thus, it would be unconscionable for the appellant to charge the respondent twice for the same transaction. Of course, the outcome would have been different if each of the defendants instructed the appellant separately or where the respondent engaged the appellant to act for it in different transactions. We find that the taxing officer properly invoked her discretionary power under Rule 16 of the Advocates (Remuneration) Order by striking out the bills of costs for duplicity. The rule provides-“Notwithstanding anything contained in this Order, on every taxation the taxing officer may allow all such costs, charges and expenses as authorized in this Order as shall appear to him to have been necessary or proper for the attainment of justice or for defending the rights of any party, but, save as against the party who incurred the same, no costs shall be allowed which appear to the taxing officer to have been incurred or increased through over-caution, negligence or mistake, or by payment of special charges or expenses to witnesses or other persons, or by other unusual expenses.”As a result, the facts of this case are distinguishable from the decisions cited by the appellant for the reasons set out herein above.16. We, unlike the learned Judge, find that Rule 62 of the Advocates (Remuneration) Order does not apply in this case. The Rule stipulates that -“Where the same advocate is employed for two or more plaintiffs or defendants, and separate pleadings are delivered or other proceedings had by or for two or more such plaintiffs or defendants separately, the taxing officer shall consider in the taxation of such advocate’s bill of costs, either between party and party or between advocate and client, whether such separate pleadings or other proceedings were necessary or proper, and if he is of opinion that any part of the costs occasioned thereby have been unnecessarily or improperly incurred, the same shall be disallowed.”17. It is clear that the rule applies where an advocate is engaged or instructed by two or more clients and files separate pleadings for each client.” [emphasis added]

13. The bottom line is that the taxing officer has discretion to disallow costs improperly incurred on unnecessary pleadings or other proceedings where Counsel acted for two or more parties in the same transaction, or where two sets of pleadings are filed. In the case where, as here, only one set of pleadings are filed I should therefore agree that separate Bills of Costs were not justified in this case where counsel acted for the two plaintiffs in one transaction of the suit.

14. The taxing officer was entitled to strike out the two separate Bills of Costs filed for the two plaintiffs. It is what he did after striking them out that raises concern: He proceeded to tax the unitary Bill of Costs which had been withdrawn by the Plaintiffs. That action is the basis of the first objection issue taken by the Plaintiffs in their submissions dated 3/5/2023, namely, “whether the learned taxing master erred in law by failing to recognize that the Bill of Costs dated 26th June 2020 could and was withdrawn.”

15. The court will deal with the question of impact of withdrawal of the Bill of Costs next.

Withdrawal of Bill of Costs 16. Rule 71 of the Advocates Renumeration Order provides significantly as follows:“71. Bills not to be altered after being lodgedNo addition or alteration shall be made in a bill of costs by the party submitting the same after the bill has been lodged for taxation, except by consent of the parties, or by permission or direction of the Court or taxing officer.”

17. The Court is inclined to agree with the submission the plaintiffs in the circumstances of this case could and did withdraw their Bill of Costs dated 26th June 2020 because the same was never lodged for taxation before the taxing master, in the terminology of Rule 71 of the Advocates Renumeration Order having been withdrawn by letter to the Court dated 4th November 2020, and replaced by two Bills of Costs upon which hearing by submissions was had subsequently, the parties themselves treating the Bill of Costs of 26/6/2020 as having been withdrawn and replaced by the two subsequent Bills.

18. The Court has noted that the only on the file by the plaintiffs and the Defendants, respectively dated 11th February 2021 and 3rd February 2021, were expressly indicated to be in respect of the Bill of Costs dated 3/11/2020 and 4/11/2020. There were no submissions on the Bill of Costs dated 26/6/2020.

19. The respectfully accepts the reasoning of the Court in Sherwin Njoroge & Associates v Bridge International Academies Ltd [2016] eKLR (C. W. Meoli, J.) that-“it would be unreasonable to suggest that because no specific provision provides for its withdrawal such withdrawal is not contemplated in the law and resort must be had to the Civil Procedure Rules. The possibility of withdrawal can be implied from the provisions of the Advocates Act that enable the filing of Bills for taxation.”

20. Indeed, the very Rule 71 of the Advocates Act has inbuilt the implied exception that a Bill of Costs may be withdrawn before it is lodged for taxation. And the reason for the prohibition for amendment of a Bill of Costs, which is a pleading in taxation matters, without consent or leave of court after has been lodged for taxation is clear that parties are bound by their pleadings and to protect the respondent to the Bill from being ambushed with amendments at the hearing by way of taxation. Hence the prohibition after the Bill of Costs has been lodged for taxation.

21. By analogy of a suit, which includes a Bill of Costs within the meaning of the word suit under section 2 of the Civil Procedure Rules, once a suit or application has been withdrawn, it ceases to exist and the Court cannot properly purport to proceed to hear and determine a withdrawn suit. In so doing in this matter, the Taxing Officer fell into error. Upon striking out of the two Bill of Costs filed on behalf of each plaintiff, the Taxing Officer should have directed the applicant to file, in accordance with his ruling and if so advised by his Counsel, a joint Bill of Costs for the two plaintiffs with instruction fees separated and fix the same for taxation.

Hearing of a taxation 22. The taxing Officer was required to hear the Bill of Costs by way of taxation in terms of Rule 72 of the Advocates Renumeration Order as follows:“72. Notice of taxation to be given by taxing officerWhen a bill of costs has been lodged for taxation as aforesaid the registrar shall, upon payment of the fee prescribed, issue to the party lodging the bill a notice of the date and time (being not less than five days after the issue of such notice, unless a shorter time is specially allowed by the registrar) fixed for taxation thereof and shall also issue a copy of such notice, accompanied by a copy of the bill, to each advocate and other person whose name is endorsed on the bill as entitled to receive notice of the taxation thereof:Provided that where any person so entitled to receive notice cannot be found at his last-known address for service the taxing officer may in his discretion by order in writing dispense with service of notice upon such person.”

23. No notice of Taxation was given for the withdrawn Bill of Costs. The submissions filed were on the two Bills subsequently filed after the withdrawal. No submissions were filed with the respect to the first Bill of Costs and no notice of taxation thereon was given. It is noted as urged by the Counsel for the Plaintiffs that the parties’ submissions were made on the two subsequent Bills of Costs dated the 3/11/2020 and 4/11/2020. Indeed, the taxing officer himself in the ruling said he was applying the parties’ submissions on the latter to the earlier Bill of Costs which was not before him for taxation there having been no notice for taxation with respect there under Rule 72 of the Advocates Renumeration Order.

Fair hearing 24. Article 50 (1) on right to fair hearing appear to have been infringed. The Article provides that “50 (1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.” The parties to the Bill of Costs dated 26/6/2020 were entitled to be heard by way of submissions on the taxation thereof.

25. If the parties in this suit were not heard on the Bill of Costs that the taxing master purported to tax, there is a clear violation of Article 50 (1) of the Constitution. The parties were simply not heard before the determination of the taxing master on the contested items of the Bill of Costs eventually taxed. With respect to the taxing officer, it was improper for the taxing officer, suo moto, to “adopt the 1st plaintiff's submissions and the submissions by the defendants” on the two later Bill of Costs of 3/11/2020 and 4/11/2020 as their submissions on the earlier Bill of Costs of 26/6/2020. Those were not the submissions of the parties on that Bill of Costs.

26. The plaintiffs and the defendants were not heard before the taxation of the Bill of Costs.

27. It is trite that an order made without hearing a party is one that is liable to be set aside ex debito justitiae. See Craig v Kanseen [1943] 1 ALL ER 108 (Lord Greene MR) where it is established that an order made ex parte without hearing a party, which is a nullity, shall be set aside ex debito justitiae, with no need for appeal therefrom.

Merits of the Bill of Costs 28. So as not to prejudice the taxation of such a Bill of Costs the Court does not make any determinations on the objection as to the particulars items of the Bill of Costs. The Court does not similarly approve any of the taxed amounts based on the Bill of Costs which had been previously withdrawn. The matter must await the filing of a competent Bill of Costs.

29. In making this order, the court is mindful of the overriding objective of civil process under the Civil Procedure Act “to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act”, but the finding of the court being that there is no competent Bill of Costs to be taxed, the order for the filing of a fresh Bill of Costs and taxation thereof afresh necessarily follows.

30. The question of two instruction fees for the two plaintiffs is not properly before this court having found that the taxing officer should not have proceeded to tax the withdrawn Bill of Costs. However, the Defendants’ Counsel rightly conceded that two separate instruction fees could be charged relying on the decision of Lenaola, J. (as he then was) in Nguruman Limited v Kenya Civil Aviation Authority & 3 others [2014] eKLR.

31. The Court does not also get into the specific items of the Bill of Costs taxed by the Taxing Officer for the same reason that the same was not properly before him, and in view of the orders for filing of fresh Bill of Costs made in this Ruling. Moreover, as held in “Thomas James Arthur v Njeri Electricity Undertaking (1961) E.A 492 the court will only interfere –“where there has been an error in principle the court will interfere, but the questions solely of quantum are regarded as matters with which the taxing officers are particularly fitted to deal and the court will intervene only in exceptional cases.”

32. It is now clear that on the question of reverting to taxation of withdrawn Bill of Costs, this court finds an error of principle within the meaning of Thomas James Arthur v Njeri Electricity Undertaking (supra) to justify the interference with the decision of the taxing officer.

33. The Court further notes that for different reasons the two parties, in effect, seek a reconsideration of issue by a fresh taxation of the plaintiffs’ Bill of Costs in the matter.

ORDERS 34. Accordingly, taxation, the Court shall allow the reference by Chamber Summons filed by the Plaintiffs dated 10/3/2021, sets aside the taxation decision of the Taxing Officer made on 25/2/2021, and subsequently direct that a new Bill of Costs within a period of seven (7) days be filed for taxation by the Deputy Registrar, newly constituted, and any subsequent proceedings, if applicable, in accordance with the timelines set by Rule 11 of the Advocates Remuneration Order.

35. Consequently, the Court makes no order on the defendants’ reference by Chamber Summons dated 8/3/2021 challenging taxation on specified items 27 and 28 of the Bill of Costs dated 26/6/2020, which the court holds to have been effectively withdrawn and was not before the Court for taxation.

36. As none of the parties is to blame for the direction taken by the taxing master in arriving at his taxation subject of the references, which is now set aside, there shall be no order as to Costs.

37. For purposes of directions as to hearing before the taxing officer, this mater shall be mention before the Deputy Registrar of the Court on 14/11/2023. Order accordingly,

DATED AND DELIVERED THIS 3RD DAY OF NOVEMBER, 2023. EDWARD M. MURIITHIJUDGEAPPEARANCES:Mr. Walukwe for the Plaintiffs.Mr. Bwire for the Defendants.