[2018] KEHC 6316 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

MISC. CIVIL APPLICATION NO. 111 OF 2017

MORRIS GUCHURA NJAGE T/A

MORRIS NJAGE & COMPANY ................................... APPLICANT

V E R S U S

LIZA CATHERINE WANGARI MWANGI .............. RESPONDENT

R U L I N G

1. This is a ruling on an application dated 12th March 2018 seeking for orders that the applicant bill of costs dated 19th December 2017 be referred to another taxing master for taxation. It is supported by grounds on the face of the application. It is contended that the taxing master went wrong and misdirected himself in failing to tax the applicant's bill as ordered by the honourable judge in her ruling dated 13th November 2017.

2. Further that the taxing master misdirected himself in principle in holding that an advocate/client bill of costs could be taxed on the same principle of law as party and party bill of costs. It is contended that the taxing master considered the respondent's case only as against that of the applicant. The taxing master is said to have further misdirected himself when he failed to strictly observe the provisions the rules under the Advocates (Remuneration) Order which require him to tax the bill item by item and to give written reasons for each item taxed off.

3. The application was vehemently opposed by the respondent in her replying affidavit sworn on 3rd April 2018. She deposes that the applicant's bill was taxed as directed by the court in its ruling delivered on 13th November 2017. The taxing master looked into each item in comparison to the party and party bill of costs as stipulated in Schedule VI of the 2006 Advocates and (Remuneration) Order. It is not true that the taxing master failed to give due consideration to the applicant's case in taxing the bill and that the taxing master gave reasons in his ruling for the taxation.

4. The respondent contends that the application is defective in that it is not supported by an affidavit and is not in compliance with Rule 11 (3) of the Advocates (Renumeration) Order. It is further stated that there are no errors of principle to warrant the remittance of the bill for re-taxation and that the application should be dismissed.

5. The parties filed submissions in support of the argument which this court has considered in this ruling. The applicant who is an Advocate of the High Court filed his own submissions while the respondent was represented by Nchogu, Omwanza & Nyasimi Advocates.

6. The respondent has raised the issue of the application being incompetent for non-compliance with the law. This is the issue that this court must determine before any other issues are dealt with.

7. The relevant law is paragraph 11(1) of the Advocates (Remuneration) Order (ARO) which provides:-

i. Should any party object to the decision of the taxing officer, he may within 14 days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.

ii. The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within 14 days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties setting out the grounds of his objection.”

iii. Any person aggrieved by the decision of the judge upon any objection refered to such judge under (2) may, with leave of the judge but not otherwise, appeal to the court of Appeal.

iv. 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 sort to be enlarged may have already expired.”

8. The reasons given by the applicant for not complying with the provisions of paragraph 11(1) of the (ARO) are that the taxing officer had given reasons in his ruling and therefore it was not necessary to make a request for reasons. The issue that arises is whether the failure to comply with the rules renders the application defective.

9. In a case of Governors Balloon Safaris Limited Vs Skyship Company Limited & another [2015] eklr where the Court of Appeal case of Kipkorir, Titoo & Kiara Advocates Vs Deposit Protection Fund Board Civil Appeal No. 220/2004 was cited with approval. The court observed that:-

“It seems the taxing officer decided to rely on the reasons in the ruling on taxation dated 23rd February 2004. That ruling at least.... taxing officer applied to assess 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.”

10. In this application, the taxing master had given his reasons in the ruling and included the formula that he used to tax the bill. These are the reasons that the applicant has relied on in his application.

11. It was also contended that the applicant did not issue an objection notice as provided by the rules. This was position as shown by the record. The applicant stated the grounds supporting his application on the face of the application. The issue which arises is whether these discrepancies are noncompliance render this application incompetent?

12. Having regard to the holding of the Court of Appeal in the Governor Balloon case (supra), I am of the considered opinion that the applicant partially complied with the law. Article 159(2)(d) calls upon courts not to have due regard to technicalities. These provisions support the observation of the court of Appeal in the above named case.

13. This application was filed about 4 days after the expiry of the 30 days given by the court. I do not see any evidence of extension of time. However, since the respondent did not raise this issue, the court will deem the application as properly filed and penalize the applicant in way of costs.

14. I find that the application is competent and passes the test for being heard before this court.

15. The applicant argued that there were several errors in principle on part of the taxing master which were outlined as follows:-

(a) That the taxing master did not comply with the orders of the High Court in its ruling delivered on 13/11/2017.

(b) The taxing master was under the misapprehension that an advocate/clients bill of costs is taxed on the assessed party and party costs increased by one half.

(c) The taxing master did not address himself to the provisions of Schedule VI A, or the provision in Schedule VI B of the Advocates Renumeration Order.

(d) The applicant’s case and his submissions were not considered in taxing the bill to include the work done.

16. The respondent submitted that there were no errors in principle as alleged and argued that the taxing master followed the correct formula in taxing the bill.

17. It is important to look at the orders of this court which led to the filing of this bill of costs. In the ruling delivered on 13/11/2017 which followed an application dated 3/03/2015 in the HC Misc. Civil Application No. 117 of 2015 the court gave the following orders:-

“That the respondent files and causes to be taxed the advocates/client bill of costs within 30 days and in default Ksh.1,022,769/- be released to him being the approximate legal fees.”

18. As a result of these orders, the applicant filed his advocates/client bill on 19/12/2017 and caused the same to be taxed as directed by the court on 13/11/2017.

19. In the ruling, the High Court made it clear that the sum of Ksh.1,022,769/- was an approximate fees. The figure was drawn from the application of the respondent herein in which he sought orders for taxation of the applicant’s bill.

20. The figure was therefore an estimate for all intents and purposes. The bill of costs was yet to be filed for taxation. It was therefore a misdirection on part of the taxing master to use that figure and refer to it as the “assessed” party to party costs.

21. The ruling of the taxing master read:-

“I have perused the court record, and find that on 14/6/2011, the party and party bill of costs was taxed at Ksh.681,846/-. The items that were presented for taxation then are the ones that have been presented in this bill of costs for taxation. The only entitlement that is due to the applicant in this bill is the addition of ½. Therefore I tax the entire bill of costs at Ksh.681,846/-. This sum, added to ½ totals up to Ksh.1,022,769/- I find therefore that the advocate/applicant is entitled to Ksh.1. 022,769/-”

22. The applicant adopted a figure of Ksh.681,846/- that he said he obtained from the court record and called it and party costs. He further stated that the figures presented for taxation then, are the same ones presented in this taxation bill.

23. The said bill containing the figure of Ksh.681,846/- as party and party costs was never taxed between the parties. The orders of the court were that the applicant files his advocate/client bill for taxation. The bill was filed on 19/12/2017 and was the one before the taxing master for taxation.

24. The taxing master said that items presented in the untaxed bill were the same presented to him for taxation. The officer was mistaken in that regard because the bill before him was the one filed in pursuance with the orders of this court. The approximate legal fees was irrelevant after the bill was filed by the applicant. The taxing master had a duty to tax the bill and give due consideration to each item on the bill.

25. The applicant relied on the case of Kipkorir, Titoo & Kiara Advocates Vs The Deposit protection Board [2005] 1 KLR 529 in which the principles for taxation of an advocate/clients bill were discussed. It was held:-

1) “This was a taxation of advocates and clients costs for which the formula for taxation is provided by schedule VI A and VI B of the Advocates Remuneration Order. According to the formula, the advocates/clients costs in this case would be the party and party costs prescribed in schedule VI A increased by one half.

2) In exercising its discretion, the taxing officer is required to consider the matters specified inproviso (i) of schedule VI A, ie, the other fees and allowances to the advocate (if any) in respect of the work to which any such allowance applies, the nature and importance of the general conduct of the proceedings, a discretion by the trial judge, and all other relevant circumstances.

3) 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.

4) If the taxing officer fails to apply the formula for assessing instructions fees or costs specified in schedule VI or fails to give due consideration to all relevant circumstances of the case particularly the matters specified in proviso (1) of schedule VI A (1), that would be an error in principle.”

26. The formula applicable in the taxation of an advocates/ clients bill is found in Schedule VI B Remuneration Order (ARO) paragraph (b) which provides:-

“As between advocate and client the minimum fee shall be:-

a) The fees prescribed in A above, increased by one-half; or

b) The fees ordered by the court, increased by one-half; or

c) The fees agreed by the parties under paragraph 57 of this order increased by one-half; as the case may be, such increase to include all proper attendances on the client and all necessary correspondences.”

27. Paragraph (a) herein is applicable to the fact of this case. The fees were never agreed on or ordered by the court as provided in (b) and (c).

28. The taxing master in his ruling did not indicate whether he used Schedule VI A or VI B of the ARO. But from the wording, it is clear that he used the formula in Schedule VI A which relates to taxing of party and party costs and then increased the amount by half.

29. The correct paragraph was Schedule VI B and after taxation, the taxed costs be increased by one half. It was observed in the Kipkorir case (supra) that:

“The record does not show that the taxing officer had the above principles in mind. Indeed I find that an incorrect paragraph of the schedule was applied.”

This holding is relevant to the facts of this application.

30. The ruling shows that the bill was not taxed item by item as required. It is trite law that all the fees and allowances of an advocate in respect of the work done ought to be taken into consideration. The nature and importance of the case; the amount involved, the interests of the parties and the general conduct of the proceedings must be considered.

31. It is a legal requirement that all items on the bill be taxed and reasons given where the bill is disputed. It is therefore correct to say that the taxing master did not satisfy the compliance set out in the rules.

32. It was held in the case of Arthu Vs Nyeri Electricity Undertaking [1961] EA 497 which was cited in the Kipkorir case:-

“Where there has been an error in principle, the court will interfere with the taxation.”

33. In this application I find that the taxing master committed several errors in principle which justify the interference of this court.

34. For these reasons, I allow the application and set aside the ruling of the taxing master delivered on 7th March, 2018.

35. The bill of taxation filed on 19/12/2017 is hereby remitted to another taxing master other than Hon. V.O. Nyakundi for taxation.

36. Costs to be in the cause.

37. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 4TH DAY OF JUNE, 2018.

F. MUCHEMI

JUDGE

In the presence of:-

Mr. Muriithi for Mr. Njage the Applicant

Respondent present in person