[2022] KEHC 11310 (KLR)
The court found that the applicant did not elect to have the bill of costs taxed under Schedule V, and thus the taxing master was correct to tax the bill under Schedule VII. The items listed by the applicant were not provided for under Schedule VII and were properly taxed off. The instruction fees were correctly...
Source-derived case information.
- Citation
- [2022] KEHC 11310 (KLR)
- Parties
- Applicant: M/S C.K. Ungu & Company Associates; Respondent: Ann Nkirote Mwaniki
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Case E046 of 2021
- Procedural Posture
- Miscellaneous Application / Reference From Taxation Decision
- Outcome
- application dismissed
- Judges
- TW Cherere
- Legal Topics
- Taxation of Costs, Advocate Client Bill, Remuneration Order, Review of Taxing Master, Instruction Fees, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M/S C.K. Ungu & Company Associates
Applicant
Ann Nkirote Mwaniki
Respondent
Procedural Posture
Miscellaneous Application / Reference From Taxation Decision
Legal Issues
- 1 Whether the taxing master erred in principle in taxing off certain items in the advocate/client bill of costs.
- 2 Whether the instruction fees were properly assessed based on the decretal sum awarded on appeal.
- 3 Whether items unsupported by vouchers were properly taxed off.
Ratio Decidendi
The court found that the applicant did not elect to have the bill of costs taxed under Schedule V, and thus the taxing master was correct to tax the bill under Schedule VII. The items listed by the applicant were not provided for under Schedule VII and were properly taxed off. The instruction fees were correctly based on the decretal sum awarded on appeal, and the amount allowed by the taxing master was confirmed. Items unsupported by vouchers were also properly excluded. There was no error of principle or manifest excess in the taxing master’s decision, and the reference lacked merit.
Court Disposition
application dismissed
Orders
- The chamber summons dated November 11, 2021 is dismissed with costs to the client/respondent.
Full Case Text
Judgment text and source record
29 paragraphs
M/S C.K. Ungu & Company Associates v Mwaniki (Miscellaneous Civil Case E046 of 2021) [2022] KEHC 11310 (KLR) (5 May 2022) (Ruling)
Neutral citation: [2022] KEHC 11310 (KLR)
Republic of Kenya
In the High Court at Meru
Miscellaneous Civil Case E046 of 2021
TW Cherere, J
May 5, 2022
IN THE MATTER OF THE ADVOCATES ACT AND IN THE MATTER OF TAXATION OF COSTS BETWEEN PARTY AND PARTY
Between
M/S C.K. Ungu & Company Associates
Advocate
and
Ann Nkirote Mwaniki
Client
Ruling
1. This is a reference from a decision made by the taxing master delivered on 14. 10 2021 on the applicant’s advocate/client bill of costs dated 05. 08. 2021 filed on 06. 08. 2021.
2. By achamber summons dated November 11, 2021brought under the provisions of rule 11 of the Advocates (Remuneration) Order, 2014 and schedule 7 of the Advocates (Remuneration) (Amendment)Order, 2014, the Applicant seeks orders that:1. The decision of the Taxing Master dated 14. 10 2021 be reviewed on items 4,5,7,8,9,10,12,13,14,15,16,17,18,19,23,24,27,28,30,32,35,37,39,40,41,43,44,45,46,51,52,63 and 642. Costs be provided for
3. The motion is premised on the grounds on the body of the application and the supporting affidavit sworn by Christine Kawira Ungu, Advocate on 11. 11. 2021 and annexures thereto.
4. Application is opposed on the basis of a replying affidavit sworn by the respondent on December 15, 2021in which she avers that the decision by the taxing master was well founded.
Analysis and Determination 5. I have carefully considered the reference in the light of the supporting affidavit, he replying affidavit, and written submissions filed on behalf of both parties.
6. A Judge of the High Court cannot interfere with the taxing officer’s exercise of discretion 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 inference that it was based on an error of principle. (See Nyangito & Co. Advocates v Doinyo Lessos Creameries Ltd [2014] eKLR.).
7. Paragraph 22(1) of the Advocates Remuneration Orderprovides as follows: -“In all cases in which any other schedule applies, an advocate may, before or contemporaneously with rendering a bill of costs drawn as between advocate and client, signify to the client his election that, instead of charging under the Schedule, his remuneration shall be according to the scale applicable under the other Schedule.”
8. I shall proceed to determine the reference on the basis of the disputed items as hereunder.Items 4, 7, 8, 9,10 ,12 ,13 ,14, 15, 16, 17, 18, 19, 23, 24, 27, 28, 30, 32, 35, 37, 39, 40, 41, 43,44, 45,46, 51 and 52
9. Thebill of costs speaks for itself clearly that the applicant did not make an election to apply schedule v and the taxing officer was wholly aware that the bill of costs was to be taxed underschedule VII.
10. Schedule VII has no provision for all the items that are listed herein above and the Taxing master correctly taxed them off.
Items 5 11. The ultimate decretal sum awarded on appeal was Kshs. 863,030/- and as rightly found by the Taxiing Master, that was the sum the basis on which Instructions fees ought to be taxed. Whereas the sum due under the schedule is Kshs 65,000, the Taxing Master allowed Kshs 90,000 which I confirm.
Items 63 and 64 12. The order taxing off these items that were not supported by vouchers was well founded
13. The upshot of this is that chamber summons dated November 11, 2021 is found to have no merit and it is dismissed with costs to theclient/respondent.
DATED AT MERU THIS 05TH DAY OF MAY 2022T. W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Advocate/Applicant - N/A for C.K.Ungu & Company AssociatesFor Client/ Respondent - Mr. Njunja for Nkunja & Co. Advocates