[2024] KEELC 4363 (KLR)

Korir & another v Ministry of Education & 5 others (Environment & Land Case 56 of 2016) [2024] KEELC 4363 (KLR) (29 May 2024) (Ruling)

Neutral citation: [2024] KEELC 4363 (KLR)

Republic of Kenya

In the Environment and Land Court at Eldoret

Environment & Land Case 56 of 2016

JM Onyango, J

May 29, 2024

Between

Zipporah Jepkemei Korir

1st Plaintiff

Andrew Arap Rotich

2nd Plaintiff

and

Ministry Of Education

1st Defendant

Attorney General

2nd Defendant

Elisha Busienei

3rd Defendant

County Government Of Uasin Gishu

4th Defendant

Belion Contractors

5th Defendant

Rift Valley Technical Training Institute

6th Defendant

Ruling

1. The Plaintiff filed a Notice of Motion dated 23rd January, 2023 seeking the following orders that:a.That there be a stay of execution of the Certificate of taxation of costs assessed at KShs.525,155/- on 25th November, 2022 pending the outcome of this motion. (Spent)b.That certificate of taxation of costs or the taxation or assessment made on 25th November, 2022 be set aside.c.Costs of the Application.

2. The Application is founded on the grounds set out on the face of the Motion and on the Supporting Affidavit of even date as well as a Supplementary Affidavit of 7th November, 2023 both sworn by Zipporah Jepkemoi Korir, the 1st Plaintiff. The Plaintiffs’ case is that on 25th November, 2022 the Deputy Registrar (DR) delivered a Ruling on the 3rd Defendant’s Party and Party Bill of Costs filed on 11th June, 2021. She deponed that the Ruling was devoid of reasons save for exercise of discretion despite the fact that the DR is obligated to give reasons for his decision under the Advocates Remuneration Order (ARO) and the Fair Administrative Actions Act. That the amount awarded as costs is far above what the ARO permits and/or prescribes.

3. The Plaintiff averred that the work was subject to the ARO 2014 contrary to the DR’s holding, and that the instruction fee ought to have been assessed fairly since the value of the property was unknown. Further, that some of the items taxed consist of disbursements which could only be awarded if proven to have actually been incurred. She averred that the DR’s decision is unjust and prejudicial to her as the bill has been taxed at a figure that is disproportionately high. That she seeks a stay of execution of the certificate of costs as well as setting aside of the taxing master’s decision as she is aggrieved by it. The Application is also supported by the Supplementary Affidavit of Dalton Wainaina Kimingi, the Plaintiff’s Advocate which reiterated the averments in the 1st Plaintiff’s Supporting Affidavit.

4. On 17th May, 2023 the 3rd Defendant, Elisha Busienei, filed a Replying Affidavit opposing the Motion stating that the said motion is frivolous, vexatious and an abuse of the court process, further that it lacks basis and is a non-starter for want of form. He deponed that the Taxing Officer considered the Plaintiff’s submissions before arriving at the taxed costs, thereby discharging his mandate regarding the Defendant’s Party and Party bill of costs and thus has no jurisdiction to determine the instant Motion. That the reasons are clear from the ruling delivered on 25th November, 2022 and the Plaintiff cannot dictate how the Taxing Officer discharges his mandate, by declaring that the reasons given are not proper reasons. The 3rd Defendant deponed that an Application challenging taxed costs ought to be filed within 14 days from the date of the impugned decision, yet the Application herein was filed 60 days outside the statutory timeline without leave of court. That the Plaintiff is guilty of laches and the Application should be dismissed with costs.

SUBMISSIONS3rdDefendant’s Submissions 5. The 3rd Defendant filed his submissions on 29th June, 2023 setting out a background of the dispute. The 3rd Defendant’s Advocate then submitted that the ARO, 2009- at paragraph 11 provides the procedure to be followed when objecting to the decision of a Taxing Officer. He submitted that the Plaintiff ought to have challenged the ruling delivered on 25th November, 2022 within 14 days by calling for reasons before moving to court vide chamber summons within a further 14 days. That the Plaintiff ought to have challenged the ruling on or before 9th December, 2022 and filed the Reference on or before 16th January, 2023. Counsel pointed out that the instant Application is by way of Notice of Motion and not Chamber Summons as stipulated in the ARO and was filed on 25th January, 2023, well outside the statutory timeline without seeking leave of the court.5

6. Counsel argued that the decision of a Taxing Master can only be challenged before the Honourable Judge as explained at Paragraph 11(2) of the ARO-Principal Order.

7. Counsel also argued that the Plaintiff had not availed any document calling for reasons for the taxation or filed a Reference application as required. That the instant Application as filed invites the taxing officer to sit in an appeal of his own decision, yet the rules of taxation provide that the mandate of a Taxing Officer ends once they exercise their jurisdiction on taxation, and that decision may only be challenged through a Reference before a judge.

8. He urged the court to find that it has no jurisdiction to sit in appeal of the decision of 25th November, 2022. He relied on the case of Owners of Motor Vessel Lillian S vs Caltex Oil (Kenya) Ltd (1989) eKLR, S.K. Macharia & Another vs KCB Ltd & 2 others (2012) eKLR, Daphne Musyoki Mwose Kitele vs O.N. Makau & Mulei Advocates & 2 Others (2022) eKLR and Machira & Company Advocates vs Arthur K. Magugu & Another (2012) eKLR.

9. Counsel further submitted that strictly speaking, the instant application is not a Reference to this court against the decision of the taxing officer but an Application to set aside the ruling of 25th November, 2022. That in Gacau Kariuki & Co. Advocates vs Allan Mbugua Ng’ang’a (2012) eKLR, the court held inter alia that where there is a specific procedure for addressing a grievance, that procedure should be strictly complied with. The court further held that the correct procedure to challenge the decision on taxation is not by applying to have it set aside but by way of a Reference under Rule 11 of the ARO. Further that an application seeking to set aside orders made on taxation is incompetent as the court does not have jurisdiction to entertain it, and the court declined to set aside the decision on taxation. Counsel urged that costs follow the events as provided under Section 27 of the Civil Procedure Rules. He invited the court to find that it is bereft of jurisdiction to determine the instant application and dismiss it with costs.

ANALYSIS AND DETERMINATION 10. The Court has considered the Notice of Motion, the response filed thereto and written submissions and the relevant provisions of law and there is only one issue for determination:-a.Whether the Certificate of Costs and the assessment made on 25th November, 2022 should be set aside.

11. The grievances the 1st Plaintiff as set out in her Supporting Affidavit are fourfold;- firstly that the decision was devoid of reasons. Secondly, the amount taxed is way over what is prescribed by the ARO. Thirdly, that the work was subject to the ARO 2014 contrary to the DR’s holding and fourthly that the disbursements taxed were not proved as required.

12. The law provides an avenue for handling grievances where one is dissatisfied with the decision of a Taxing Master under Rule 11 of the Advocates Remuneration Order. Rule 11 of the Advocates Remuneration Order sets out the applicable procedure in such instances and 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) for 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.”

13. The procedure for challenging the decision of a Taxing Master is clearly provided for in the law and is commenced by the lodging the objection/seeking reasons and then by filing a Reference within fourteen days. Notably, the Court has discretion to enlarge time in appropriate cases. In the present case, the Plaintiff neither timeously filed a Reference nor sought to enlarge time to file one. Rule 12 of that order permits a Reference by consent of the parties. In this matter, there is no such consent and the Plaintiff was therefore bound to follow the process set out in Rule 11.

14. The prayer for setting aside of the Certificate of Costs as well as the grievances upon which this prayer is grounded constitute a challenge or objection to the decision of the Taxing Master on the Bill of Costs. Since these are issues that will be gauged against the decision of the Taxing Master and the applicable law, they are grievances falling under the ambit of what ought to be dealt with by way of a Reference under Rule 11 of the ARO. Ringera J (as he then was) in the case of Machira & Co. Advocates vs Magugu [2002] 2 EA 428 held that:-“As I understand the practice relating to taxation of bills of costs, any complaint about any decision of the taxing officer whether it relates to a point of law taken with regard to taxation or to a grievance about the taxation of any item in the bill of costs is ventilated by way of a Reference to a judge in accordance with paragraph 11 of the Advocates Remuneration Order.”

15. Underscoring the importance of abiding by the procedure laid out under Rule 11, when the above matter was taken to the Court of Appeal in Machira & Co. Advocates vs Arthur K. Magugu & Another CA (2002) eKLR, the court held that:“Rule 11 thereof provides for ventilation of grievances from such decisions through References to a judge in chambers. The effect may be viewed as an appeal or a review but these being legal terms in respect of which different considerations apply, they should not be loosely used. Appeals require the typing of proceedings, compiling of records of appeal and hearing of the same in open court. Reviews, however, would require provisions akin to those in Section 80 of the Civil Procedure Act of discovery of new and important matters, errors on the face of the record and so on. In our view the Rules Committee intended to avoid all that and provide for a simple and expeditious mode of dealing with decisions on Advocate’s bill of costs through references under Rule 11 to a Judge in chambers.”

16. The Deputy Registrar’s ruling on the Bill of Costs was delivered on 25th November, 2022 and going by the rules, the letter of objection ought to have been done by 10th December, 2022. However, from a perusal of the court file, the Plaintiff’s letter of objection to the Ruling is dated 9th January, 2023 and was stamped received on 10th January, 2023 a month after time lapsed for lodging it. This means that although filed 15 days from the date of the letter of objection, the application itself which ought to have been filed 28 days from the date of delivery of the Ruling was filed outside the statutory time line. There was no leave sought or obtained to extend the statutory time line and the Plaintiff did not include in the instant motion a prayer for extension of time.

17. That aside, instead of filing a Reference as is required under Rule 11, the Plaintiff decided to approach the court by way of the present Notice of Motion seeking to have the Certificate of Costs set aside as opposed to filing a Chamber Summons as required under the ARO. The case of Gacau Kariuki & Co. Advocates vs Allan Mbugua Ng’ang’a Misc. Application No. 678 of 2011 (2012) eKLR, cited by the 3rd Defendant comes to mind. In that case, Justice Odunga refused to set aside the decision of the taxing officer due to failure by the objector to file a Reference, stating that:-“I must make it very clear that what is before me is not a Reference from taxation but an application seeking to set aside the orders made on 29th day of September 2011 and 27th day of October 2011. The orders, which were made on 29th day of September 2011, were made by the Deputy Registrar when in her capacity as the Taxing Master taxed the Bill as presented. What is the procedure for challenging such a decision? In my view the only available recourse to a person aggrieved by a decision of a taxing officer is to lodge a Reference. Where a person discovers the fact of taxation after the time stipulated as it is alleged herein paragraph 11 (4) of the Advocates Remuneration Order empowers the court to extend time. It has been said time and again that where there is a specific procedure provided for addressing a grievance that procedure should be strictly complied with.”

18. In any event, the 1st Plaintiff has not indicated what is to come after the Certificate of Costs is set aside. The 1st Plaintiff has not indicated that her intention is to file a formal Reference or when she intends to do that, and there is no prayer asking that the Bill of Costs be submitted for re-taxation. Even if her intention was to comply with Rule 11 eventually, the time for filing a Reference has lapsed with no application seeking to extend it. In Gacau Kariuki & Co. Advocates vs Allan Mbugua Ng’ang’a (Supra), the Court went on to explain that:-“I am also of the same school of thought as the Learned Judges’ as expressed above. A reference is not an appeal although it may be in the nature of one. In a reference, the court is more concerned with whether or not the taxing officer has directed himself on a matter of principle. If the same is found to have been the case, the usual course is to remit the matter back to the taxing officer with the necessary directions. The decision whether or not to proceed with taxation is an exercise of discretion and if he proceeds ex parte in circumstances in which he should not have so proceeded, in my view, that would amount to an error of principle and the judge may remit the matter back with directions that the bill be re-taxed in the presence of the parties. It is therefore my view and I so hold that the only recourse available to the client herein was to come by way of Reference. Accordingly, I decline to set aside the taxing master’s decision made on the 29th day of September 2009. ”

19. The Application herein is thus defective for failure to adhere to the laid down procedure for proceedings of this nature. The Supreme Court had an occasion to consider the importance of adherence to laid down procedures in approaching a court of law. Although it was in an appeal on an election petition, in Moses Mwicigi & 14 Others vs Independent Electoral and Boundaries Commission & 5 Others [2016] eKLR, the court held thus:“This court has on a number of occasions remarked upon the importance of rules of procedure, in the conduct of litigation. In many cases, procedure is so closely intertwined with the substance of a case, that it befits not the attribute of mere technicality. The conventional wisdom, indeed, is that procedure is the handmaiden of justice. Where a procedural motion bears the very ingredients of just determination, and yet it is overlooked by a litigant, the Court would not hesitate to declare the attendant pleadings incompetent.Yet procedure, in general terms, is not an end in itself. In certain cases, insistence on a strict observance of a rule of procedure, could undermine the cause of justice. Hence the pertinence of Article 159(2)(d) of the constitution, which proclaims that;“...courts and tribunals shall be guided by...[the principle that] justice shall be administered without undue regard to procedural technicalities”.This provision, however, is not a panacea for all situations befitting judicial intervention; and inevitably, a significant scope for discretion devolves to the courts.”

20. But even if the court were to determine this Application as filed and disregard the lack of compliance with procedure, the same would also not pass muster and not even the attempt to bring the application under the Fair Administrative Actions Act can save it, for various reasons. The first is that the Fair Administrative Actions Act is not the requisite law that deals with matters of taxation of costs. It is clear that the Plaintiff was attempting to cast a wide net hoping that she will be successful on either one of the two laws. However, the reliefs offered by the two pieces of legislation are governed by different rules and judicial principles. What is applicable in this instant application is the Advocates Remuneration Order.

21. Secondly, the Ruling of the Taxing Master is self-explanatory and he does in fact give reasons for his decision on the items the Plaintiff claimed to object to. the Courts are aware that in some instances, the taxing officers deliver rulings which are self-contained thus negating the need to furnish fresh reasons thereafter. Indeed, as long as the Taxing Master has given his reasons, it matters not that the objector does not agree with them. It is for this reason that I do not agree with the averment by the Plaintiff at Ground (vi) on the face of the Motion that “The reasons of the Deputy Registrar amount to no reason”. If anything, this statement in and of itself is an acknowledgment by the Plaintiff that the DR did in fact furnish reasons for his decision, only that the Plaintiff does not agree with them. In Evans Thiga Gaturu Advocate vs Kenya Commercial Bank Limited [2012] eKLR, the court held as follows:-“However, where there are reasons on the face of the decision, it would be futile to expect the taxing officer to furnish further reasons. The sufficiency or otherwise is not necessarily a bar to the filing of the reference since that insufficiency may be the very reason for preferring a reference. Otherwise mere adherence to the procedure may lead to absurd results if the advocate was to continue waiting for reasons, as it happened in the case of Kerandi Manduku & Company vs Gathecha Holdings Limited Nairobi (Milimani) HCMA No. 202 of 2005, where the taxing officer had left the judiciary. Where reasons are contained in the decision, I share the view that to file the reference more than 14 days after the delivery of the same would render the reference incompetent.”

22. I have perused the Taxing Master’s decision in this case, and it is clear that in compliance with Rule 11, the taxing officer gave his reasons on how he arrived at his decision. Asking a Taxing Officer to redraft another “ruling” containing reasons in this case would be superfluous and a waste of judicial time. In the case of Kipkorir, Titoo & Kiara Advocates vs Deposit Protection Fund Board Civil Appeal No. 220 of 2004 (2005) eKLR, the Court of Appeal held thus:“It is true that the taxing officer did not record the reasons of the decision on the items objected to after the receipt of the respondent’s notice. It seems that the taxing officer decided to rely on the reasons in the ruling of taxation dated 24th February, 2004. That ruling at least indicated the formula that the taxing officer applied to access the instructions fees. Although there was no strict compliance with Rule 11 (2) of the Order, we are nevertheless, satisfied that there was substantial compliance. The adequacy or otherwise of the reasons in the ruling is another matter. Indeed, we are of the view, that if a taxing master totally fails to record any reasons and to forward them to the objector, as required then that would be a good ground for a reference and the absence of such reasons would not in itself preclude the objector from filing a competent reference.”

23. The court has also considered the case of Ahmednasir Abdikadir & Co. Advocates vs National Bank of Kenya Limited (2) [2006] 1 EA 5 where Ochieng, J similarly held as follows:“Although rule 11(1) of the Advocates Remuneration Order stipulates that any party who wishes to object to the decision of the taxing officer, should do so within 14 days after the said decision and thereafter file his reference within 14 days from the date of the receipt of the reasons, where the reasons for the taxation on the disputed items in the bill are already contained in the considered ruling, there is no need to seek for further reasons simply because of the unfortunate wording of subrule (2) of rule 11 of the Advocates Remuneration Order demands so. The said rule was not intended to be ritualistically observed even when reasons for the disputed taxation are already contained in the formal and considered ruling...Therefore the reference having been filed way out of the period prescribed should have been dismissed but having been given due consideration in substance, the same dismissed.”

24. In the circumstances, taking into consideration the authorities cited above, I find that the reasons for the Taxing Master’s decision were contained in the ruling. That grievance therefore lacks merit.

25. Thirdly, the Taxing Master expressly stated in his ruling that the Bill of Costs was taxed on the basis of the ARO 2014. The exact words in the Ruling are:-“I will proceed to tax the Bill of Costs pursuant to provisions of the Advocates (Remuneration) (Amendments) Order 2014. ”The allegation by the Plaintiff that the Taxing Master found otherwise is thus not only erroneous, but misguided.

26. As to the objection that the amount taxed is inordinately high, it is trite that the discretion of the Taxing Officer should not be interfered with unless it appears that he is wrong in principle or has not exercised his discretion properly. The court will therefore not interfere with the Taxing Master’s ruling unless it is proved that the amount taxed was manifestly high or low; or if there is proof that the Taxing Master followed a wrong principle in reaching his decision. In the case of Nyangito & Co. Advocates vs Doinyo Lessos Creameries Ltd [2014] eKLR, Odunga J summarised the circumstances under which a Judge may interfere with the taxing officer’s discretion as follows:-“1)That the court cannot interfere with the taxing officer’s decision on taxation unless it is shown that either the decision was based on an error of principle or the fee awarded was manifested excessive as to justify an inference that it was based on an error of principle;2)It would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors and, according to the Remuneration Order itself. Some of the relevant factors to be taken into account include the nature and importance of the cause or matter, the amount or value of the subject matter involved; the interests of the parties, the general conduct of the proceedings and any direction by the trial Judge;3)If the court considers that the decision of the taxing officer discloses errors of principle, the normal practice is to remit it back to the taxing officer for reassessment unless the Judge is satisfied that the error cannot materially have affected the assessment and the court is not entitled to upset a taxation because in its opinion.”

27. There is no evidence that the Taxing Master exercised his discretion capriciously or whimsically. Apart from the allegation that the DR failed to apply the ARO 2014, which matter has been laid to rest earlier in this decision, there is no other allegation that he made an error of principle such as taking into account irrelevant factors or failure to consider relevant factors. I find that it would be unjust to interfere with the discretion of the Taxing Master and therefore dismiss the application with costs to the respondent.

28. On the complaint that the only reason given for the taxation of the instruction fee is the exercise of discretion, in Joreth Limited vs Kigano & Associates [2002] eKLR, the Court of Appeal outlined the principles a Taxing Officer should observe in exercising his/her discretion in assessing instruction fees as follows:“We would at this stage point out that the value of the subject matter of a suit for the purposes of taxation of a bill of costs ought to be determined from the pleadings, judgment or settlement (if such be the case) but if the same is not so ascertainable the taxing officer is entitled to use his discretion to assess such instruction fee as he considers just, taking into account, amongst other matters, the nature and importance of the cause or matter, the interest of the parties, the general conduct of the proceedings, any direction by the trial judge and all other relevant circumstances.”

29. The discretion of the Taxing Master was properly explained in Peter Muthoka & another vs Ochieng & 3 others [2019] eKLR, where the Court of Appeal held that:“It seems to us quite plain that the basis for determining subject matter value for purposes of instruction fees is wholly dependent on the stage at which the fees are being taxed. Where it happens before judgment, it is the pleadings that form the basis for determining subject value. Once judgment has been entered, and for what seems to us to be an obvious reason, recourse will not be had to the pleadings since the judgment does determine conclusively the value of the subject matter as a claim, no matter how pleaded, gets its true value as adjudged by the court.Where, however, a suit is settled, then, from a literal and practical reading of the provision, the subject matter value must be sought by reference, in the first instance, to the terms of the settlement. Just as one would not start with the pleadings in the face of a judgment, it is indubitable that one cannot start with the pleadings where there is a settlement.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 instructions fees in accordance with what he considers just bearing in mind the various elements contained in the provision we are addressing. He does have discretion as to what he considers just but that discretion kicks in only after he has engaged with the proper basis as expressly and mandatorily provided: either the pleadings, the judgment or the settlement. He has no leeway to disregard the statutorily commanded starting point. And we think, with respect, that the starting point can only be one of the three. It is not open to the taxing officer to choose one or the other or to use them in combination, the provision being expressly disjunctive as opposed to conjunctive. It is also mandatory and not permissive.”

30. According to the two authorities above, where the value of subject matter cannot be ascertained, the Taxing Officer is entitled to use his discretion to assess such instruction fee as he considers just, taking into account, amongst other matters, the nature and the importance of the cause or the matter, the interest of the parties, general conduct of the proceedings, any direction by the trial judge and all other relevant circumstances. The Taxing Master explained that:“Item 1-Instruction fees, the 3rd Defendant has submitted a fee of KShs. 964,633. 54 under this item. … I have perused through the pleadings and note that the value of the property was not expressly stated in any of the pleadings. Pursuant to the provisions of the Advocates Remuneration Order, Schedule 6(j) and in exercise of the discretion which grants me the discretion to award a reasonable sum considering a number of factors that include the nature of the cause, importance and interest of the parties. I will proceed to exercise my discretion and tax instruction fees at a sum of KShs.300,000/- having considered the nature of the suit its complexity and importance while exercising the discretion donated to me judiciously. I note that the matter did not proceed to full hearing. I will therefore subject instruction fees to 75% as provided by the ARO. Consequently, instruction fees is taxed at KShs.225,000/-.”

31. I note that the Deputy Registrar gave reasons why exercised his discretion and taxed the instruction fees at KShs.225, 000/-. I have considered the reasons the Taxing Master gave for reducing the instruction fees as well as the considerations on the disbursements. I am satisfied that the Taxing Master not only took into consideration relevant factors specifically provided for in ARO, but also gave reasons for them in his decision. This figure is not excessive or inordinately high as alleged.

32. I have not found an error in principle to warrant my interference with the discretion of the Taxing Master and the Plaintiffs have not presented any compelling material to justify any interference with the said discretion. Costs follow the event, and on this instant the same are awarded to the 3rd Defendant. Consequently, the Notice of Motion dated 23rd January, 2023 lacks merit and is hereby dismissed with costs to the 3rd Defendant.

Dated, signed and delivered virtually this 29th day of May 2024…………………..J.M ONYANGOJUDGEIn the presence of;SUBPARA 1. Mr. Wainaina for Mr. Momanyi for the PlaintiffSUBPARA 2. Miss Omala for Mr. Mwangi for the 6th DefendantSUBPARA 3. Mr. Ogongo for the 3rd DefendantCourt Assistant: BrianELC.56 OF 2016 RULING 0