[2017] KEHC 9503 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMA RIGHTS DIVISION

MISC. CAUSE NO. 1 OF 2017

KTK ADVOCATES.......................................................APPLICANT

VERSUS

BARINGO COUNTY GOVERNMENT.....................RESPONDENT

RULING

1. This ruling disposes two applications, namely; one dated 15th June 2017 filed by the Respondent (herein after referred to as the "first application") and the applicants application dated 28th June 2017 (hereinafter referred to as the "second application") seeking orders that judgement be entered in favour of the applicant for Ksh. 17,570,907. 08 plus interests at court rates from 8th August 2017 and costs of the application.

2. The "first application" by the Respondent seeks to set aside the taxation of bill of costs dated 13th February 2017 by the Deputy Registrar on 8th June 2017 on grounds that:- (i) the Deputy Registrar was openly biased against the applicant; (ii) the taxing master failed to consider the Respondents submissions dated 1st April 2017; (iii) the taxing master failed to exercise her discretion judiciously in arriving at the instruction fees which is highly exaggerated and exorbitant.

3. The "second application" dated 28th June 2017 is by the applicant in these miscellaneous proceedings seeking orders that judgement be entered against the Respondent in the sum of Ksh. 17,570,907. 08 under section 51 (2) of the Advocates Act.[1]The applicant, a firm of advocates acted for the Respondent in High Court Petition No. 113 of 2015. The advocate/client Bill of costs was taxed in favour of the law firm in the said sum of Ksh. 17,570,907. 08 on 8th August 2017. A certificate of taxation issued accordingly.

4. On 25th July 2017, I directed that the two applications be heard together.

5. Miss Munyiri, appearing for the applicant in the first application basically highlighted the grounds on the face of the application and adopted the supporting affidavit annexed thereto and annextures and urged the court to allow the application.

6. In opposition to the "second application," she relied on the Replying affidavit of John Korir filed on 27th September 2017 which essentially reiterates the grounds in support of the "first application."

7. Mr. Kipkorir, in opposition to the "first application,"relied on the grounds of opposition filed on 28th August 2017namely:- (i) the application is defective; (ii) it does not meet the mandatory provisions of Rule 11of The Advocates (Remuneration) Order; (iii) the Respondent failed to establish that they filed their submissions before the taxing master and that that their neglect cannot be transferred to the taxing master; (iv) that the application is scandalous.

8. Mr. Kipkorir submitted his firm represented the Respondent in Pet. No. 113 of 2015, that they filed a Bill of costs which was taxed, that the Respondent filed their submissions in the Judicial Review Division as opposed to the Constitutional and Human Rights Division, and that the Taxing Master stated in her ruling that she taxed the bill in accordance with the law.

9. Citing authorities, counsel argued that the application does not satisfy the criteria for setting aside a bill of costs and urged the court to dismiss it and enter judgement in favour of the applicant as provided under section 51 (2) of the Advocates Act[2]adding that the bill was properly taxed in accordance with the law and taking into account the complexity of the case and that retainer is not in dispute.

The principles applicable to a review of a taxing master’s decision

10. From the record, it is clear that on 18th June 2017, the Deputy Registrar gave reasons under Rule 11 of the Advocates (Remuneration Order) 2014, Schedule 6. Having received the reasons, and being dissatisfied with the same, the Respondent now asks this court to review or set aside the taxation.

11. The general principles governing interference with the exercise of the taxing master’s discretion were authoritatively stated by the South African court in Visser vs Gubb[3] as follows:-

“The court will not interfere with the exercise of such discretion unless it appears that the taxing master has not exercised his discretion judicially and has exercised it improperly, for example, by disregarding factors which he should properly have considered, or considering matters which it was improper for him to have considered; or he had failed to bring his mind to bear on the question in issue; or he has acted on a wrong principle. The court will also interfere where it is of the opinion that the taxing master was clearly wrong but will only do so if it is in the same position as, or a better position than, the taxing master to determine the point in issue . . . The court must be of the view that the taxing master was clearly wrong, i.e. its conviction on a review that he was wrong must be considerably more pronounced than would have sufficed had there been an ordinary right of appeal.”

12. Before the court interferes with the decision of the taxing master it must be satisfied that the taxing master’s ruling was clearly wrong, as opposed to the court being clearly satisfied that the taxing master was wrong. This indicates that the court will not interfere with the decision of the taxing master in every case where its view of the matter in dispute differs from that of the taxing master, but only when it is satisfied that the taxing master’s view of the matter differs so materially from its own that it should be held to vitiate the ruling.[4]

13. It is settled law that when a court reviews a taxation it is vested with the power to exercise the wider degree of supervision.[5] This means that:-

" . . . that the Court must be satisfied that the Taxing Master was clearly wrong before it will interfere with a ruling made by him . . . viz that the Court will not interfere with a ruling made by the Taxing Master in every case where its view of the matter in dispute differs from that of the Taxing Master, but only when it is satisfied that the Taxing Masters view of the matter differs so materially from its own that it should be held to vitiate his ruling.[6]

14. The taxing master is required to take into account the time necessarily taken, the complexity of the matter, the nature of the subject-matter in dispute, the amount in dispute and any other factors he or she considers relevant.

15. The ultimate question raised by the "first application" for review/setting aside the taxation is therefore whether the taxing master struck this equitable balance correctly in the light of all the circumstances of this particular case.

16. The scope of the "first application" requires this court be satisfied that the taxing Master was clearly wrong before interfering with her decision.[7]The quantum of such costs is to be what was reasonable to prosecute or defend the proceedings and must be within the remuneration order. The determination of such quantum is determined by the taxing master and is an exercise of judicial power guided by the applicable principles.

17. It is a well-established principle of review that the exercise of the Taxing Master's discretion will not be interfered with ‘unless it is found that he has not exercised his discretion properly, as for example, when he/she has been actuated by some improper motive, or has not applied his/her mind to the matter, or has disregarded factors or principles which were proper for him/her to consider, or considered others which it was improper for him/her to consider, or acted upon wrong principles or wrongly interpreted rules of law, or gave a ruling which no reasonable man would have given.'[8]

18. Guidance can also be obtained from the Canadian case of Reese v. Alberta[9] McDonald J. sets out the general principlesapplicable to awarding costs, at page 44:-

"While the allocation of costs of a lawsuit is always in the discretion of the court, the exercise of that discretion must be consistent with established principles and practice. …..,the costs recoverable are those fees fixed for the steps in the proceeding by a schedule of fees ….plus reasonable disbursements….

19. In principle, costs are awarded, having regard to such factors as:- (a)the difficulty and complexity of the issues; (b) the length of the trial; (c) value of the subject matter and (d) other factors which may affect the fairness of an award of costs. The law obligates the taxing master totake into account the above principles.

20. The principles of taxation of costs were restated by the Ugandan Supreme court as follows:-[10]

"Save in exceptional cases, a judge does not interfere with the assessment of what the taxing officer considers to be a reasonable fee. This is because it is generally accepted that questions which are solely of quantum of costs are matters with which the taxing officer is particularly fitted to deal, and in which he has more experience than the judge. Consequently a judge will not alter a fee allowed by the taxing officer, merely because in his opinion he should have allowed a higher or lower amount.

Secondly, an exceptional case is where it is shown expressly or by inference that in assessing and arriving at the quantum of the fee allowed, the taxing officer exercised, or applied a wrong principle. In this regard, application of a wrong principle is capable of being inferred from an award of an amount which is manifestly excessive or manifestly low.

Thirdly, even if it is shown that the taxing officer erred on principle, the judge should interfere only on being satisfied that the error substantially affected the decision on quantum and that upholding the amount allowed would cause injustice to one of the parties."

21. Back at home, in Republic vs. Ministry of Agriculture & 2 others Ex parte Muchiri W’njuguna & 6 Others[11]Ojwang, J (as he then was) expressed himself inter aliaas follows:-

“The taxation of costs is not a mathematical exercise; it is entirely a matter of opinion based on experience. A Court will not, therefore, 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 on 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 interference that it was based on an error of principle. Of course it would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors. And according to the Advocates (Remuneration) Order itself, some of the relevant factors to take into account include the nature and importance of the case or matter, the amount or value of the subject matter involved, the interest of the parties, the general conduct of the proceedings and any direction by the trial judge. Needless to state not all the above factors may exist in any given case and it is therefore open to the taxing officer to consider only such factors as may exist in the actual case before him. 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… A taxing officer does not arrive at a figure by multiplying the scale fee, but places what he considers a fair value upon the work and responsibility involved… Since costs are the ultimate expression of essential liabilities attendant on the litigation event, they cannot be served out without either a specific statement of the authorizing clause in the law, or a particularized justification of the mode of exercise of any discretion provided for…. The complex elements in the proceedings which guide the exercise of the taxing officer’s discretion, must be specified cogently and with conviction. The nature of the forensic responsibility placed upon counsel, when they prosecute the substantive proceedings, must be described with specificity. If novelty is involved in the main proceedings, the nature of it must be identified and set out in a conscientious mode. If the conduct of the proceedings necessitated the deployment of a considerable amount of industry and was inordinately time-consuming, the details of such a situation must be set out in a clear manner. If large volumes of documentation had to be classified, assessed and simplified, the details of such initiative by counsel must be specifically indicated – apart, of course, from the need to show if such works have not already been provided for under a different head of costs……….”

22. Paragraph four, page one of the Tax Masters headed "Ruling and reasons for taxation," the Taxing Master stated "To appreciate the nature of the contest at hand, the Taxing Master did call for the parent 1st Judge file and...."This paragraph, and indeed the entire ruling stating the reasons leaves me with no doubt that the Taxing Master addressed her mind to the complexity of the case. It should be noted that the applicant in the first application did not demonstrate that the matter was not complex.

23. On the allegation that the Taxing Master did not consider the Respondents submissions, I have carefully perused the record. I note that after several appearances, the Respondents counsel was asked by the taxing master to photocopy their submissions and place them in the court file. Interestingly, counsel did not do so. Instead of complying with such a clear court order, when the matter came up for mention on 30th March 2017, counsel had filed an application under certificate of urgency seeking to temporarily stop the proceedings. Understandably, the taxing master raised concerns with regard to the tactics raised by the counsel.

24. On 13th April 2017, counsel was again asked to photocopy their submissions and place a copy in the court file and a ruling date was fixed for 9th May 2017. When the matter came up for ruling, the taxing master noticed that counsel had not complied and proceeded to write the ruling. All this is clearly captured in he record. Clearly, counsels conduct as enumerated above is totally wanting and raises serious doubts. It is even more perplexing for the Respondents counsel to accuse the taxing master of ignoring their submissions when the same counsel defied a court directive to place a copy of their submissions in the court file. To me, such an accusation in bad faith, misleading, totally unfounded, unfortunate and unexpected from legal practitioners who are expected to uphold professional standards.

25. No argument has been raised either in the affidavits or before me to question the items taxed in the Bill of costs or to suggest that the amounts are inordinately too high, unreasonable, not to scale or not provided for in the Remuneration order. It was incumbent for the applicant in the "first application" to point out which items in the Bill of costs they are contesting, and demonstrate why and or how they were not taxed as per scale or demonstrate why in their view the taxing master improperly exercised her discretion or misapplied the law or bring the application within the purview of any of the grounds or principles enumerated in the passages cited earlier in this ruling. Simply put, there are no grounds at all to sustain the "first application."It is frivolous, an abuse of court process and out rightly made in bad faith, misconceived and it lacks merit.

26. One of the applicable principles laid down in precedents is that the Court will interfere with an award of costs by a taxing officer if such costs are so low or so high that they amount to an injustice to one of the parties.[12] This argument was not advanced nor was it demonstrated to be present in the present case.

27. I find nothing in the taxation ruling to demonstrate that the taxing master did not take into account the relevant principles. In particular there is nothing to show that the matter before the court was not complex. The case was heard by an uneven number of judges after it was certified under article 165 (4) of the Constitution as raising substantial questions of law. Also, it is clear the Respondent has not questioned the value of the subject matter which is a relevant factor in assessing costs particularly the instruction fees. No single item in the bill has been identified as being either too high or not to scale.

28. In Joreth Ltd vs Kigano & Assoc.[13] the Court of Appeal observed 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, judgement 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 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.”

29. The Respondent has failed to demonstrate that the calculation of instruction fees based on the alleged value of the subject matter was erroneous and was not based on any discretionary powers vested on the taxing master. Secondly when it comes to instruction fees, there is discretionary power to take into account the subject matter of the suit, the complexity of the matter and the amount of work invested in handling the suit for the taxing master to award a reasonable fee. In the present case, it is has not been shown beyond argument that the subject matter of the case was not properly ascertained, hence there is nothing to show that the amount allowed by the taxing master on the instruction fees was excessive and not within the scale fees.

30. As demonstrated by the authorities cited above, this court cannot substitute its views in place of those of the taxing master. Accordingly, I find that the "first application" by Respondents dated 15th June 2017 lacks merit. The same is dismissed with costs to the Applicant in these miscellaneous proceedings.

31. I now turn to the "second application" dated 28th June 2017. It seeks judgement to be entered in the sum of Ksh. 17,570,907. 08 as per the bill of costs taxed on 8th June 2017. It is premised on section 51 (2) of the Advocates Act[14] which provides that:-

"The certificate of the taxing officer by whom any bill has been taxed shall, unless it is set aside or altered by the Court, be final as to the amount of the costs covered thereby, and the Court may make such order in relation thereto as it thinks fit, including, in a case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs."

32. The law is very clear that once a taxing master has taxed the costs, issued a Certificate of costs and there is no reference against his ruling or there has been a ruling and a determination made and not set aside and/or altered, no other action would be required from the court save to enter judgment. An applicant is not required to file suit for the recovery of costs. The certificate of costs is final as to the amounts of the costs and the court would be quite in order to enter judgment in favour of the Applicant against the Respondent for the taxed sum indicated in the Certificate of Taxation.

33. The above section in my understanding, gives the court the jurisdiction to enter judgment for taxed costs where conditions are satisfied. The first condition is that there must be a certificate of the taxing officer by whom the bill has been taxed which certificate has not been set aside or varied by the court. Secondlythere must be no dispute as to the retainer. If those two conditions are satisfied, the court has a discretion to enter judgment for the sum certified to be due with costs.

34. The above position has been upheld in numerous decisions of this among them E.W. Njeru & Co Advocates vs Zakhem Construction (K) Limited [15]a position firmly grounded on the provisions of Section 51 (2) of the Advocates Act[16]which I believe is the correct exposition of the law.

35. I find, and hold that the above two conditions have been satisfied in this case, hence there is no reason at all for this court to decline the application to enter judgement as prayed.

36. Accordingly, I find that the "second application" dated 28th June 2017 is merited. I allow the "second application" as prayed. Consequently I make the following orders:-

a.Thatthe Respondents application dated 15th June 2017 be and is hereby dismissed.

b.Thatjudgement be and is hereby entered in favour of the applicant herein KTK Advocates against the Respondent Baringo County Government in the sum of Ksh. 17,570,907. 08plus interests at court rates from the date of taxation.

c.Thatthe Respondent herein shall bear the costs of the two applications the subject of this Ruling.

Orders accordingly

Dated at Nairobi this2ndday ofNovember2017

John M. Mativo

Judge

[1] Cap 16, Laws of Kenya

[2] Cap 16, Laws of Kenya

[3] 1981 (3) SA 753 (C) 754H – 755C

[4] See Ocean Commodities Inc and Others v Standard Bank of SA Ltd and Others [1984] ZASCA 2; 1984 (3) SA 15 (A) and Legal and General Insurance Society Ltd v Lieberum NO and Another 1968 (1) SA 473 (A) at 478G.

[5]Johannesburg Consolidated Investment Co. v Johannesburg Town Council 1903 TS 111.

[6]Ocean Commodities Inc and Others v Standard Bank of SA Ltd and Others 1984 (3) SA 15 (A) at 18F C G.

See also the discussion by Botha J in Noel Lancaster Sands (Pty.) Ltd. v Theron and Others 1975 (2) SA 280 (T) at 282D C 283D for a discussion of the nature and limits of the judicial function in this context.

[7] (See: Ocean Commodities Inc v Standard Bank of SA Ltd [1984] ZASCA 2; 1984 (3) SA 15 (A) at 18E-G)

[8] Per SMIT AJP in Preller vS Jordaan and Another 1957 (3) SA 201 (O)at 203C - E

[9] {1993} 5 A.L.R. (3rd) 40

[10]Bank of Uganda vs. Banco Arabe Espanol SC Civil Application No. 23 of 1999 (Mulenga JSC)

[11]{2006} eKLR).

[12] Premchand Raichand Ltd. and Another v. Quarry Services of East African and Others [1972] EA 162

[13] Civil Appeal No. 66 of 1999 (unreported).

[14] Supra

[15] HC Misc 486 of 2012

[16] Supra