[2022] KEHC 1422 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISC. CIVIL APPLICATION NO. E065 OF 2021

MAKHECHA & GITONGA ADVOCATES........................................ADVOCATE/APPLICANT

VERSUS

THE STANDARD GROUP PLC..............................................................CLIENT/RESPONDENT

RULING

1. The advocate/applicant herein has filed the Chamber Summons Reference (“the Reference”) dated 2nd November, 2021. The Summons is supported by the grounds set out on its face and the facts stated in the affidavit of advocate Wambugu Gitonga and sought for the following orders:

i. THAT the taxation be varied or set aside.

ii. THAT cost of the Reference be borne by the client/respondent.

2. The respondent did not file any documents in response to the Reference.

3. Pursuant to the directions issued by the court on 7th February, 2022 the application was to be disposed of through written submissions.

4. I have considered the grounds set out on the body of the Summons; the facts deponed in the affidavit filed in support thereof; and the submissions on record.

5. A brief background of the matter is that the applicant filed the Advocate-Client Bill of Costs dated 25th January, 2021 and sought for the total sum of Kshs.1,425,090. 56 arising out of HCCC NO. 414 OF 2011 (Hon. Mbuvi Gideon Kioko v Standard Group Limited & 5th others) being a defamation claim in which the applicant acted for the respondent as one of the defendants at all material times.

6. The Bill of Costs was placed before the taxing officer, Honourable L. Mbacho and taxed at the sum of Kshs.370,794/= vide the ruling delivered on 5th August, 2021.

7. Returning to the Reference, it is clear that the order sought therein is for the varying and/or setting aside of the taxation.

8. In its submissions, the applicant is challenging the amount taxed on the instruction fees, arguing that even in defamation cases such as the one giving rise to the taxation proceedings in the present instance, the subject matter would constitute the damages which would be awarded at the conclusion of the matter, if the plaintiff therein is successful.

9. The applicant argues that the plaintiff in the defamation claim is likely to be awarded a sum of not less than Kshs.19,000,000/= on damages and therefore argues that the taxing master ought to have awarded the full amount drawn on instruction fees in the Advocate-Client Bill of Costs, since the statement of defence had been filed in the defamation case, while relying on the case of First American Bank of Kenya Ltd v Gulab P. Shah & 2 others [2002] eKLRwhere the court held that:

“In my opinion, the full instruction fees to defend a suit is earned the moment a defence has been filed and the subsequent progress of the matter is irrelevant to that item of fees.”

10. It is the contention of the applicant that the learned taxing master erred in not applying the correct principles and further erred in concluding that the defamation claim was non-monetary in nature and hence it was not possible to ascertain the value of the subject matter.

11. The applicant is therefore of the view that the Bill of Costs ought to be taxed as drawn.

12. The respondent by way of its submissions dated 25th May, 2021 contends that the sum of Kshs.420,000/= sought by the applicant is excessive and urges that a more reasonable sum of Kshs.15,000/= be taxed on instruction fees.

13. The respondent has also challenged the amounts taxed in various other items in the Advocate-Bill of Costs.

14. I will first address the sentiments raised by the respondent in its submissions. As earlier noted, the respondent did not file any documents in response to the Reference and going by the record, there is nothing to indicate that it filed a separate Reference to challenge the taxation ruling.

15. The legal position is that submissions do not constitute evidence and hence a party cannot be heard to argue its case or present its evidence through its submissions. This was succinctly stated by the Court of Appeal in the case of Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR when it held that:

“Submissions cannot take the place of evidence…Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all.”

16. In view of the foregoing position, the respondent cannot be heard to challenge the taxation ruling by way of its submissions.

17. Returning to the sentiments raised by the applicant, it is apparent therefrom that the amount taxed on instruction fees is the one being essentially challenged.

18. The courts have previously considered factors that would trigger the interference of a taxing master’s decision on appeal. In the case of Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLRthe Court of Appeal held thus:

“On a reference to a judge from the taxation by the Taxing Officer, the judge will not normally interfere with the exercise of discretion by the taxing officer unless the taxing officer, erred in principle in assessing the costs.”

The Court above went ahead to reason that an error of principle would include the excessive award of costs or the overemphasis on factors such as the nature and complexity of the matter at hand.

19. The above legal position was reaffirmed in the case of Moronge & Company Advocates v Kenya Airports Authority [2014] eKLRsimilarly determined by the Court of Appeal.

20. Upon my perusal of the record, I note that in the Advocate-Client Bill of Costs, the applicant sought for the sum of Kshs.420,000/= on Item 1 being the instruction fees to represent the respondent in the defamation claim in which the plaintiff therein sought a variety of damages plus costs of the claim.

21. In her ruling, the learned taxing master reasoned that in the absence of a judgment in the defamation claim at the time, she was left to deduce the ‘value of the subject matter’ from the pleadings but that in that instance, it was not possible to ascertain the value of the subject matter since the prayers sought in the plaint.

22. Consequently, the learned taxing master drew guidance from Schedule VI, paragraph 1 (L) of the Advocates Remuneration Order, 2009 which provides thus:

“To sue or defend in any case not provided for above, such sum as may be reasonable but not less than 6,300/”

23. Going by the record, it is apparent that the learned taxing master also made reference to Schedule 6 of the Advocates (Remuneration) (Amendment) Order 2014 in taxing the Bill of Costs in question.

24. The learned taxing master stated in her ruling that notwithstanding the fact that the applicant had withdrew from acting for the respondent before the defamation claim was concluded, she considered various factors including the nature and importance of the claim; the general conduct of the proceedings; the documentation involved, as well as the principles set out in the case of Joreth Limited v Kigano & Associates [2002] eKLRand therefore taxed the instruction fees at the sum of Kshs.75,000/=.

25. The Court of Appeal in the above-cited case of Joreth Limited v Kigano & Associates [2002] eKLRwhich was both referenced in the impugned ruling by the learned taxing master and the submissions by the applicant, succinctly stated the following in respect to ascertaining of the value of the subject matter of a suit:

“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.”

26. Upon my perusal of the record, I agree with the finding of the learned taxing master that given the nature of the claim of defamation, it was not possible to ascertain the value of the subject matter. I however disagree with her reasoning that the claim was non-monetary in nature.

27. Be that as it may, from my study of the record and consideration of the foregoing circumstances, material and authorities, I am of the view that the learned taxing master applied the correct principles and arrived at a reasonable assessment of the instruction fees.

28. The upshot is that the Chamber Summons dated 2nd November, 2021 lacks merit, it is dismissed with costs to the respondent.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 18TH DAY OF MARCH, 2022.

.........................

J.K. SERGON

JUDGE

In the presence of:

...................................FOR THE ADVOCATE/APPLICANT

......................................FOR THE CLIENT/RESPONDENT