[2020] KEHC 911 (KLR)
The court found that although the amount pleaded in the plaint was specific and would ordinarily attract higher instruction fees, the appeal was dismissed for want of prosecution and not heard on its merits. Therefore, the matter was determined summarily and not by a full trial. Applying Schedule 6 (1)(b) of the...
Source-derived case information.
- Citation
- [2020] KEHC 911 (KLR)
- Parties
- Appellant: Milling Co-operation of Kenya (2009) Limited; Respondent: Samuel Muchai Njuguna t/a Wamu Stores; Respondent: Rahab Wambui t/a Wamu Stores; Respondent: Francis Muriuki Muraguri t/a Lusoi Stores
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 58 of 2013
- Procedural Posture
- Civil Appeal / Reference Against Taxation of Costs
- Outcome
- application allowed
- Judges
- HK Chemitei
- Legal Topics
- Taxation of Costs, Instruction Fees, Dismissal for Want of Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Milling Co-operation of Kenya (2009) Limited
Appellant
Samuel Muchai Njuguna t/a Wamu Stores
Respondent
Rahab Wambui t/a Wamu Stores
Respondent
Francis Muriuki Muraguri t/a Lusoi Stores
Respondent
Procedural Posture
Civil Appeal / Reference Against Taxation of Costs
Legal Issues
- 1 Whether the Deputy Registrar erred in awarding instruction fees of Kshs. 30,000 instead of Kshs. 106,340 as claimed by the applicant.
- 2 Whether instruction fees should be based on the full amount pleaded when the appeal was dismissed for want of prosecution and not heard on merits.
- 3 What is the appropriate instruction fee in a matter dismissed summarily without a full trial.
Ratio Decidendi
The court found that although the amount pleaded in the plaint was specific and would ordinarily attract higher instruction fees, the appeal was dismissed for want of prosecution and not heard on its merits. Therefore, the matter was determined summarily and not by a full trial. Applying Schedule 6 (1)(b) of the Advocates Remuneration Order 2009, the court held that the appropriate instruction fee should be 75% of the standard fee chargeable under item 1(b). The court exercised its discretion to ensure the fee awarded was commensurate with the work done and did not unjustly burden the losing party or enrich the winning party. Consequently, the court set aside the Deputy Registrar's award...
Court Disposition
application allowed
Orders
- The award of Kshs. 30,000 by the taxing master is set aside.
- Instruction fees of Kshs. 79,755 are awarded to the applicant.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CIVIL APPEAL NO.58 OF 2013
MILLING CO-OPERATION OF KENYA(2009) LIMITED.APPELLANT/RESPONDENT
VERSES
SAMUEL MUCHAI NJUGUNA T/A WAMU STORES.......................1ST RESPONDENT
RAHAB WAMBUI T/A WAMU STORES..........................................2ND RESPONDENT
FRANCIS MURIUKI MURAGURI T/A LUSOI STORES.................3RD RESPONDENT
RULING
1. The applicants chamber summons dated 29th October 2020 simply prays that this court does set aside the Deputy Registrar of this courts orders dated 13th October 2020 in which she gave instruction fees of Kshs. 30,000 to the applicant instead of Kshs106,340 as per the pleadings in the court record.
2. The application which is essentially a reference is supported by the affidavit of Michael Kanyi Ngure, counsel for the 3rd respondent. The same is not opposed.
3. As can be deduced from the said affidavit it is evident that the appeal herein was dismissed for want of prosecution and in particular when the applicant failed to process the same. The court granted it a chance on 28th January 2019 but it failed to meet the dateline. The application to reinstate was equally dismissed.
4. The bill of costs was taxed and the taxing master under item 1, instruction fees, awarded the applicant Kshs. 30,000 which in the opinion of the applicant was erroneous taking into consideration that the amount pleaded in the plaint was specific namely Kshs. 2,956,000. The instruction fees would have been 106,340 per the Advocates Remuneration Order 2009.
5. The court upon perusing the pleadings herein as well as the application and the bill of costs agrees with the applicant. The matter however was not determined in terms of the appeal being heard fully but was dismissed on a technicality.
6. In the premises one cannot argue that the applicant strictly laboured as though it was in a full trial. The courts have the discretion now of assessing the extent of the man hours and research involved in defending or prosecuting the appeal. The award must be commensurate to the work involved as much as possible. In other words, it should not burden the losing party and chase it from the sit of justice. It must also not enrich the winning party especially in a matter such as this where the suit was dismissed for want of prosecution.
7. This must have been in the minds of the legislators when they enacted Schedule 6 (1) (b) of the Remuneration Order which states that;
“To sue or defend in a suit in which the suit is determined in a summary manner in any manner whatsoever without going to full trial the fee shall be 75% of the fees chargeable under item 1(b).”
8. Taking the totality of the above reasoning, the instruction fees of Kshs. 79,755 shall be an appropriate compensation to the applicant in the circumstances. The award of Kshs, 30,000 by the taxing master is hereby set aside and substituted with the above sum of Kshs, 79,755
9. The total bill is hereby taxed Kshs. 147,352
10. The costs of this application shall be in the cause.
Dated at Nakuru this 17th day of December 2020.
H. K. CHEMITEI
JUDGE