[2024] KEHC 16168 (KLR)

M/S Oyugi & Company Advocates v Abuti (Miscellaneous Civil Application E018 of 2023) [2024] KEHC 16168 (KLR) (19 December 2024) (Ruling)

Neutral citation: [2024] KEHC 16168 (KLR)

Republic of Kenya

In the High Court at Bomet

Miscellaneous Civil Application E018 of 2023

RL Korir, J

December 19, 2024

Between

M/S Oyugi & Company Advocates

Applicant

and

Julius Osanga Abuti

Respondent

(Being a Reference arising from the decision of the Taxing Officer, Hon. K. Kibelion, Deputy Registrar in Bomet High Court Misc. Application Number E032 of 2022)

Ruling

1. The Applicant filed a Chamber Summons Application dated 22nd March 2023 which sought the following Orders:-I.THAT the decision of the Taxing Officer to award Kshs 65,000/= as instruction fees under item 1(1) of the Advocate-Client Bill of Costs dated 27th October 2022 be set aside.II.THAT the decision of the Taxing Officer to tax off items 3, 4, 5, 7, 8, 9, 14, 15, 16, 17, 18, 19, 20, 21 and 22 of the Advocate Client Bill of Costs dated 27th October 2022 be set aside.III.THAT the decision of the Taxing Officer to tax off and/or not award an amount of Kshs 10,000/= as miscellaneous expenses of the Advocate-Client Bill of Costs dated 27th October 2022 be set aside.IV.THAT the Taxing Master’s Ruling and reasons for taxation delivered on 28th February 2023 be reviewed with respect to the sums allowed on item number 1 of the Advocate-Client Bill of Costs dated 27th October 2022 and the sum taxed off in items 3, 4, 5, 7, 8, 9, 14, 15, 16, 17, 18, 19, 20, 21 and 22. V.THAT in the alternative, the Taxing Master’s Ruling and reasons for taxation delivered on 28th February 2022 be set aside and the Advocate-Client Bill of Costs dated 27th October 200 be remitted for taxation afresh.VI.THAT costs of this application be provided for.

2. The Application was brought under the provisions of sections 3A, 89 and 94 of the Civil Procedure Act and Rules 11 (1), (2) and (4) of the Advocates Remuneration (Amendment) Order 2014 and it was based on the grounds on the face of the Application and further by the Supporting Affidavit sworn by Edmond Kiprono on 22nd March 2023.

The Applicant’s Case. 3. The Applicant stated that they were instructed to act for the Respondent in Sotik ELC Number 12 of 2021. That the case went to full hearing and it was determined in the Respondent’s favour.

4. It was the Applicant’s case that the Client/Respondent thereafter filed a Party to Party Bill of Costs on 12th May 2022 and the same was compromised by a Consent dated 17th May 2022 in the amount of Kshs 420,000/= . It was the Applicant’s further case that upon conclusion of the suit, they demanded for payment of their fees but the Client/Respondent ignored the demands and this made them file an Advocate-Client Bill of Costs vide Bomet High Court Misc. Civil Application Number E032 of 2022.

5. The Applicant stated that the Respondent filed a Preliminary Objection dated 3rd January 2023. That the Deputy Registrar delivered a Ruling on the Preliminary Objection on 28th February 2023 dismissing it and proceeded to award the Applicant a total amount of Kshs 122,605/= as the Advocate-Client Bill of Costs.

6. It was the Applicant’s case that they were aggrieved by the said Ruling. That despite filing a Notice of Objection to the Ruling of the Taxing Master, the Taxing Master has not given any reasons for his Ruling hence the Reference before this court.

The Response 7. The Respondent responded to the Application through the Replying Affidavit dated 21st July 2023. He stated that the Application was an afterthought as he had paid the entire taxed amount.

8. It was the Respondent’s case that the Applicant did not represent him because immediately the case was lodged, the Defendants in Sotik ELC Number 12 of 2021 filed a Preliminary Objection citing a conflict of interest involving the Applicant. That the Applicant did not defend the Preliminary Objection but instead a Notice of Change of Advocate was filed and another advocate purported to represent him. It was the Respondent’s further case that once an advocate ceased to act then the Advocates Remuneration Order ceased to apply.

9. The Respondent stated that the Taxing Master was correct to tax off items 4, 5, 7, 8, 9, 14, 15, 16, 17, 18, 19, 20, 21 and 22 of the Advocate-Client Bill of Costs. Further that items 10, 11 and 12 were taxed at Kshs 19,500/=.

10. It was the Respondent’s case that the Applicant’s services were terminated on 19th April 2021 and they could not therefore claim anything beyond that period. That the Applicant did not play any role in reaching the said Consent and that the Taxing Master was generous in awarding them the instruction fees.

11. The Respondent stated that the Applicant wanted to reap where they did not sow.

12. On 25th May 2023, I directed that the Application be canvassed by way of written submissions.

Applicant’s written submissions. 13. Through its submissions dated 13th June 2023, the Applicant submitted that the Taxing Master did not give reasons on how he arrived at the instruction fee of Kshs 65,000/= save for the inference that the trial suit (Sotik ELC Number 12 of 2021) did not proceed to a full hearing and that the suit was compromised by a Consent requiring the Respondent to be paid Kshs 420,000/=.

14. It was the Applicant’s submission that the said Consent was in respect to a Party to Party Bill of Costs which was executed by the parties in person. That the execution of the Consent was irregular and unlawful as it was done in the absence of the Applicant despite them being on record for the Respondent.

15. The Applicant submitted that it was illogical for the Respondent to be paid Kshs 420,000/= as costs yet the Advocate (Applicant) who prosecuted the case to be paid a paltry sum of Kshs 65,000/= which was way below the Kshs 400,000/= which the Respondent had agreed to pay as deposit for instruction fees. That the Taxing Master failed to apply the provisions of the Advocate Remuneration Order as he did not take into account of the fact that the case went through trial and final orders issued.

16. It was the Applicant’s submission that the value of the parcels of land known as KERICHO/CHEBORGE/1348 and 1350 were valued at more than Kshs 16 million. It was the Applicant’s further submission that the instruction fee payable to them was Kshs 420,000/= increased by 50% which would make it a total of Kshs 630,000/=.

17. It was the Applicant’s submission that the other items be submitted for fresh taxation as the Taxing Master failed to give any reasons for his Ruling. That the said items were incurred by the Applicant in the course of his duty representing the Respondent.

The Respondent’s submissions. 18. Through his submissions dated 21st July 2023, the Respondent submitted that this was a case of unjust enrichment and the Applicant trying to reap where he did not sow. That despite not representing him, the Applicant was awarded Kshs 122,605/= which he had fully paid.

19. It was the Respondent’s submission that the Taxing Master used his discretion to determine what the instruction fees would be. That the Taxing Master took into account the nature of the case, the interest of the parties and the general conduct of the proceedings. It was the Respondent’s further submission that it was not the province of this court to re-tax the bill and he relied on Joreth Limited vs Kigano & Associates (2002) eKLR and Republic vs Minister for Agriculture & 2 others ex-parte Samuel Muchiri W’njunguna (2006) eKLR.

20. The Respondent submitted that the Applicant was misleading this court when he alleged that he was on record for the Respondent at the conclusion of the matter as a Notice of Change of Advocates had been filed.

21. It was the Respondent’s submission that the Taxing Officer complied with the basic fee principle where he set out the basic figure before increasing it as required by the Advocates Remuneration Order. He relied on Paul Ssemogerere & Olum vs Attorney General (UR).

22. The Respondent submitted that the Instruction document attached by the Applicant was improperly before this court as it had not been introduced before the Taxing Master and as such the document should be expunged from the record.

23. I have gone through and considered the Chamber Summons Application dated 3rd March 2023, the Replying Affidavit dated 21st July 2023, the Applicant’s written submissions dated 13th June 2023 and the Respondent’s Written Submissions dated 21st July 2023. The only issue for my determination was whether the Taxing Master’s Ruling dated 28th February 2023 should be set aside and whether the Advocate-Client Bill of Costs dated 27th October 2022 should be subjected to fresh taxation.

Analysis and determination. 24. Section 6 of the Advocates Remuneration Order 2014 provides:-Notwithstanding anything contained in this Order, on every taxation the taxing officer may allow all such costs, charges and expenses as authorized in this Order as shall appear to him to have been necessary or proper for the attainment of justice or for defending the rights of any party, but, save as against the party who incurred the same, no costs shall be allowed which appear to the taxing officer to have been incurred or increased through over caution, negligence or mistake, or by payment of special charges or expenses to witnesses or other persons, or by other unusual expenses.

25. In DK Law Advocates vs Zhong Gang Building Material Co. Ltd & another (2021) eKLR, Odunga J. (as he then was) referred to the case of First American Bank of Kenya vs. Shah and Others [2002] 1 EA 64 when discussing instances where a Judge could interfere with the decision of a taxing officer where it was held thus:-“The circumstances under which a Judge of the High Court interferes with the taxing officer’s exercise of discretion are now well known. These principles are, (1) that 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 inference that it was based on an error of principle; (2) it would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors and, according to the Order itself, some of the relevant factors to be taken into account include the nature and the importance of the cause 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; (3) if the Court considers that the decision of the Taxing Officer discloses errors of principle, the normal practise 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 and the Court is not entitled to upset a taxation because in its opinion, the amount awarded was high; (4) it is within the discretion of the Taxing Officer to increase or reduce the instruction fees and the amount of the increase or reduction is discretionary; (5) the Taxing Officer must set out the basic fee before venturing to consider whether to increase or reduce it; (6) the full instruction fees to defend a suit are earned the moment a defence has been filed and the subsequent progress of the matter is irrelevant to that item of fees; (7) the mere fact that the defendant does research before filing a defence and then puts a defence informed of such research is not necessarily indicative of the complexity of the matter as it may well be indicative of the advocate’s unfamiliarity with basic principles of law and such unfamiliarity should not be turned into an advantage against the adversary….” (Emphasis added)

26. Similarly, in Amuga and Company Advocates vs Kisumu Concrete Products Limited (2021) eKLR, Mativo J. (as he then was) held:-“…….The general principles governing interference with the exercise of the Taxing Master’s discretion were authoritatively stated by a South African court 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.”Before interfering with a decision of a Taxing Master, the court 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. 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. It only interferes 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. When a court reviews a taxation it is vested with the power to exercise the wider degree of supervision. This means: -" . . . 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.The Taxing Master is required to consider the time 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. The definitive question is whether the Taxing Master struck this equitable balance correctly in the light of all the circumstances of this particular case. This requires this court to be satisfied that the Taxing Master was clearly wrong before interfering with her decision. The quantum of such costs is to be what was reasonable fees 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.The exercise of the Taxing Master's discretion will not be interfered with ‘unless it is found that he/she has not exercised his/her 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.” (Emphasis added)

27. I agree with the above decisions as clearly interpreting the law and setting clear parameters and principles relevant to this Reference.

28. The Applicant’s main contention was the Ruling of the Taxing Master dated 28th February 2023. Their displeasure was the award on instruction fees (Kshs 65,000/=) and the decision to tax off items 3, 4, 5, 7, 8, 9, 14, 15, 16, 17, 18, 19, 20, 21 and 22 of the Advocate Client Bill of Costs dated 27th October 2022.

29. The Applicant submitted that the Taxing Master did not give reasons on how he arrived at the instruction fee of Kshs 65,000/= save for the inference that the trial suit (Sotik ELC Number 12 of 2021) did not proceed to a full hearing and that the suit was compromised by a Consent requiring the Respondent to be paid Kshs 420,000/=.

30. On the other hand, the Respondent submitted that the Applicant wanted to enrich themselves and wanted to reap from where they did not sow. The Respondent submitted that he had fully paid the Applicant Kshs 122,605/= as awarded by the court.

31. The Respondent further submitted that the Taxing Master used his discretion to determine what the instruction fees would be by taking into account the nature of the case, the interest of the parties and the general conduct of the proceedings.

32. InKenya Power & Lighting Co. Ltd v Msellem (Miscellaneous Civil Application E056 of 2021) [2022] KEELC 2624 (KLR) (8 July 2022) (Ruling), Odeny J. held:-“A taxing master is under a duty to consider the instruction fee which should cover the advocates work including taking instructions and preparing the case for trial or appeal, the value of the subject matter and that the taxing master’s discretion must be exercised judicially and not whimsically or capriciously.”

33. The professional fees between Advocates and their clients as in the present case is governed by Schedule 7 of the Advocates Remuneration Order 2014. Part A of Schedule 7 of the Advocates Remuneration Order 2014 provided for Party to Party Costs while Part B of the Schedule 7 of the Advocates Remuneration Order 2014 provided for the Advocate-Client Costs. The difference between the Party to Party Costs and the Advocate-Client Costs was that the Advocate-Client would be the amount contained in the Party to Party Costs or the amount determined by court raised by 50%.

34. In his Advocate-Client Bill of Costs dated 27th October 2022, the Applicant at item 2 set their instruction fee at Kshs 67,200/=. The Taxing Master granted the instruction fee of Kshs 65,000/= and raised it by half (50%) and the total instruction fee given by the Taxing Officer was Kshs 97,500/=.

35. The Applicant submitted that the value of the parcels of land known as KERICHO/CHEBORGE/1348 and 1350 were valued at more than Kshs 16 million and therefore the instruction fee payable to them was Kshs 420,000/= increased by 50% which would make it a total of Kshs 630,000/=.

36. As I have noted above, from the Applicant’s Advocate-Client Bill of Costs dated 27th October 2022, the Applicant pegged their instruction fees at Kshs 67,200/=. Ordinarily, if the Taxing Master agreed with the Applicant’s proposal on the instruction fee, he would raise the Kshs 67,200/= by half and award the proper instruction fee under the Advocate-Client Bill of Costs. The Applicant was shifting goal posts at this stage by suggesting that the Taxing Master should have used the instruction fee of Kshs 420,000/= and increase it by half. It is trite that parties are bound by their pleadings and in the present case, the Applicant was bound by their proposed instruction fee of Kshs 67,200/=.

37. As indicated in DK Law Advocates vs Zhong Gang Building Material Co. Ltd & another (supra) above, the Taxing Master has the discretion to increase the instruction fee and this court can only interfere with such discretion if it is demonstrated that the Taxing Master’s decision was based on fundamentally wrong principles. In the present case, there was no evidence of error in principle. It is my finding that the Taxing Master properly exercised his discretion when he assessed the instruction fee at Kshs 97,500/=. I further agree with Ojwang J. (as he then was) in Republic vs Minister for Agriculture & 2 others Ex-parte Samuel Muchiri W’Njuguna & 6 others (2006) eKLR where he held:-“……..The basic principle cited by counsel is set out in Premchand Raichand Ltd & Another v. Quarry Services of East Africa Ltd & Another [1972] E.A. 162. In the words of Spry, V-P. (at p.164):“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, and 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 of Appeal in that case had set out certain principles to be taken into account. These were as follows:(a)costs should not be allowed to rise to such a level as to limit access to the courts to the wealthy only;(b)a successful litigant ought to be fairly reimbursed for the costs he has to incur;(c)the general level of remuneration of advocates must be such as to attract recruits to the profession;(d)so far as practicable there should be consistency in the awards made.”

38. The Applicant was also aggrieved by the Taxing Master’s decision to tax off items 3, 4, 5, 7, 8, 9, 14, 15, 16, 17, 18, 19, 20, 21 and 22 of their Advocate Client Bill of Costs dated 27th October 2022. The Applicant stated that they incurred the said expenses and they were taxed off without any explanation. On the other hand, the Respondent stated that not all the listed items were taxed off.

39. I have looked at the Taxing Master’s Ruling dated 28th February 2023 and. On taxing off item 6, the Taxing Master stated the same was captured in the instruction fee. Regarding items 17, 18, 19, 20, 21 and 22, the Taxing Master stated that the same were not proved.

40. In regard to items 3, 4, 5, 7, 8 and 9, the Taxing Master taxed them off without giving reasons. In Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] KECA 325 (KLR), the Court of Appeal held:-“…….Indeed, we are of the view, that if a taxing officer totally fails to record any reasons and to forward them to the objector, as required then that would be a good ground for a reference and the absence of such reasons would not in itself preclude the objector from filing a competent reference……” (Emphasis added)

41. Similarly, in Maisha Yetu Services Limited v Buyoywa [2024] KEHC 14930 (KLR), Kamau J. held:-“Ordinarily, failure to seek the reasons under Paragraph 11(1) of the Advocates Remuneration Order was not fatal…..”

42. From the above authorities, it is clear that the Taxing Master should give reasons for his Ruling upon receipt of the statutory Notice of Objection from the aggrieved party. However, failure to issue such reasons is not fatal and does not preclude the aggrieved party from filing their Reference, which in the present case, the Applicant has.

43. I have however looked at the subject items 3, 4, 5, 7, 8 and 9 and considered the Reference dated 22nd March 2023 and I have not found any evidence to show that the Applicant proved incurring the said expenses to the Taxing Master. The said expenses (items 3, 4, 5, 7, 8 and 9) could not therefore be awarded.

44. There has been no evidence brought forth by the Applicant that the Taxing Master acted on the wrong principles when he taxed off the above items. On the overall, I find the Taxing Master’s Ruling reasonable. In Conrad Maloba and Associates vs Music Copyright Society of Kenya (MCSK) (2021) eKLR, Makau J. held:-“Notably, the duty of a Taxing Officer is an exercise of lawful discretion which therefore, this court should uphold, the correct perception of the discretion donated by, which is that such a discretion is only duly exercised when it is guided by transparent, regular, reliable and just criteria, which discretion requires the court to take into account relevant factors.”

45. It is my finding that the Taxing Master’s Ruling dated 28th February 2023 was founded on a proper exercise of judicial discretion and consequently, this was not a suitable case for this court to interfere with the said decision of Taxing Officer.

46. In the end, the Chamber Summons dated 22nd March 2023 is not merited and the same is dismissed. I make no orders as to costs.Orders accordingly.

RULING DELIVERED, DATED AND SIGNED THIS 19THDAY OF DECEMBER, 2024. ........................R. LAGAT-KORIRJUDGERuling delivered in the absence of the Applicant, and the Respondent and Siele (Court Assistant).