[2023] KECPT 1093 (KLR)
The Tribunal found that the Bill of Costs should be taxed by reference to the value of the subject matter as reflected in the pleadings and the complexity of the case. The Tribunal considered the cumulative value of the claims and counter-claims, the nature and urgency of the applications, and the professional work...
Source-derived case information.
- Citation
- [2023] KECPT 1093 (KLR)
- Parties
- Applicant: Hon James Gichuki Mugambi; Respondent: H&M Cooperative Savings & Credit Society Limited; Respondent: Gray Mwamunye; Respondent: Nancy Mwamkuu; Respondent: Mary Thuku; Respondent: Lucy Muchiri
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 287 (089) of 2021
- Procedural Posture
- Bill of Costs Application / Taxation of Bill of Costs
- Outcome
- Bill of Costs taxed at Kshs. 6,508,571.72; 30 days stay of execution granted to Respondents.
- Judges
- BM Kimemia, J. Mwatsama, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw, PO Aol
- Legal Topics
- Taxation of Costs, Instruction Fees, Advocates Remuneration, Counter Claims, Dividends Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hon James Gichuki Mugambi
Applicant
H&M Cooperative Savings & Credit Society Limited
Respondent
Gray Mwamunye
Respondent
Nancy Mwamkuu
Respondent
Mary Thuku
Respondent
Lucy Muchiri
Respondent
Procedural Posture
Bill of Costs Application / Taxation of Bill of Costs
Legal Issues
- 1 What is the appropriate amount to be taxed as instruction fees in light of the value and complexity of the claim and counter-claim.
- 2 How should the Bill of Costs be taxed in accordance with the Advocates Remuneration Order 2014 and relevant case law.
- 3 Whether the Respondents' objections to the claimed costs are justified.
Ratio Decidendi
The Tribunal found that the Bill of Costs should be taxed by reference to the value of the subject matter as reflected in the pleadings and the complexity of the case. The Tribunal considered the cumulative value of the claims and counter-claims, the nature and urgency of the applications, and the professional work involved. Applying the principles from relevant case law and the Advocates Remuneration Order, the Tribunal determined that the instruction fees and other items should be taxed as specified, resulting in a total taxed amount of Kshs. 6,508,571.72. The Tribunal also granted a 30-day stay of execution to the Respondents.
Court Disposition
Bill of Costs taxed at Kshs. 6,508,571.72; 30 days stay of execution granted to Respondents.
Orders
- The Bill of Costs dated 12/4/2023 is taxed at Kshs. 6,508,571.72.
- Claimant to grant Respondent 30 days stay of execution.
Full Case Text
Judgment text and source record
35 paragraphs
Mugambi v H&M Cooperative Savings & Credit Society Limited & 4 others (Tribunal Case 287 (089) of 2021) [2023] KECPT 1093 (KLR) (Civ) (14 December 2023) (Ruling)
Neutral citation: [2023] KECPT 1093 (KLR)
Republic of Kenya
In the Cooperative Tribunal
Civil
Tribunal Case 287 (089) of 2021
BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members
December 14, 2023
Between
Hon James Gichuki Mugambi
Claimant
and
H&M Cooperative Savings & Credit Society Limited
1st Respondent
Gray Mwamunye
2nd Respondent
Nancy Mwamkuu
3rd Respondent
Mary Thuku
4th Respondent
Lucy Muchiri
5th Respondent
Ruling
1. The matter for determination is a Bill of Costs dated 14/4/2023. The Respondents (1,2,3 & 5th) filed their Written Submissions dated 17/7/2023. The Claimant filed their Written Submissions dated 14/8/2023. We have considered the Written Submissions of the parties and accordingly tax the Bill of Costs under Schedule II Advocates Remuneration Amendment Order 2014 as follows:
2. Instruction fees;The Claimant from prayer 1 this item is to be taxed at Kshs. 6,215,132. 39/=. The Respondents have opposed this figure and proposed a sum of Kshs. 740,603. 15/=. The parties have cited authorities to support their proposals and we make our findings as follows:
3. In Jureth Limited v Kyano & Advocates [2002]eKLR it was held that the value of the subject matter of a suit for the purposes of taxation of the Bill of Costs ought to be determined from the Pleadings, Judgment or settlement if the same is not ascertainable. The Taxing Officer is entitled to use his discretion to assess such instruction fee as he considers just, taking into account, among other matters, the nature and importance of the cause of matter, the interest of the parties, the general conduct of the proceedings, any direction…. and all other relevant circumstances.
4. We note that the instruction fees seeks to have a reasonable compensation of the professional work done and should avoid unjust enrichment for any particular party or parties.
5. We have also considered the principles of Republic v Ministry of Agriculture and 2 others exparte Muchiri W’Njuguna and 6 others [2006] eKLR.
6. We note that the Claim filed was for a sum of Kshs. 125,247,471/=, and a cumulative figure was Kshs.1,665,791,364. 30/=. There was the prayer for disbursement of the dividends for 2021 and 2022 total Kshs. 224,346,395. 30/= where the principle sum is Kshs 2,625,132,387. 30/=.
7. We also mote that there was a Ruling for the release of the initial dividends for the year 2021 and the second one for the year 2023.
8. We note that there was also a Counter -claim which was sought by the Respondent for similar amounts.
9. We note Rule 2 and 3 and the nature, complexity value, urgency and importance of the Claim. The Claim was defended and there was a Counter-claim which was defended.
10. Essentially, we note that the matter was complex, the value was high and the matter was for urgency with several Application that needed expeditious disposal at interlocutory stage. It was a complex matter involving dividends of members which was also earning interest daily.
11. We therefore tax this item as follows:a.Instruction fees.i.Claim for dividends for a principal sum of Kshs. 1,665,791,364. 30/= where the Claimant was seeking the release of the money taxed Kshs. 2,855,791. 40/=.ii.On the issue of rectification of trust deeds was issue of its own as a case within a case for Kshs. 1,665,791,364. 30/= being shares (125,247,471 at Kshs 13. 30/= per share) taxed at Kshs. 2,855,791. 40 X 1/4 = Kshs. 713,947. 85/=.iii.Permanent Injunction for dividends of Kshs 125,247,471/= where the principle value is Kshs.1,665,791,364. 30/= we hereby find this should be a fraction of the fees for the subject matter Kshs.2,855,791. 40 X ¼ taxed at Kshs.713,947. 85/=.iv.Defending the counter Claim for Kshs. 734,994,628/= being share dividends paid from the year 2009 to 2019 taxed at Kshs. 1,924,994. 62/=.Total Kshs. 6,208,681. 72/= for Instruction Fees.b.Getting up fees, drawings and copies as per items 2, 3, 4, 6, 7, 8, 20, 11, 12, 13, 22, 23, 25, 26, 31, 34, 36, 37, 38, 43, 47, 48, 51 are hereby taxed off at NIL each.c.Items on service, items 5, 14, 24, 27, 39, 49 at Kshs. 1,400/= each 1,400 x 6 = Kshs.8,400/=This item is taxed at Kshs. 8,400/=d.Item on attendances for Kshs.500/= - 15, 16, 17, 18, 19, 20, 021, 28, 29, 30, 35, 40, 41, 42, 44, 45, 50, 52, 53, 54, 55 and 56 hence Kshs.500 x 22 = Kshs.11,000/=For Kshs.2,100/= - 46, 33 = Kshs.4,200/=For item 32 – Kshs.150,000/= Kakamega circuit for 2 advocates and 3 witnesses total of attendances Kshs.203,000/=.e.Disbursements taxed at Kshs 88,490/=We therefore find that the Bill of Costs dated 12/4/2023 is hereby taxed at Kshs. 6,508,571. 72/=
RULINGSIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF DECEMBER, 2023. Hon. Beatrice Kimemia Chairperson Signed 14. 12. 2023Hon. J. Mwatsama Deputy Chairperson Signed 14. 12. 2023Hon. Beatrice Sawe Member Signed 14. 12. 2023Hon. Fridah Lotuiya Member Signed 14. 12. 2023Hon. Philip Gichuki Member Signed 14. 12. 2023Hon. Michael Chesikaw Member Signed 14. 12. 2023Hon. Paul Aol Member Signed 14. 12. 2023Tribunal Clerk JonahMuchiri advocate holding brief for Gitonga Muriuki advocate for the Claimant.Mrs. Omutimba advocate holding brief for Mr. Kinyua Advocate for the 1st , 2nd and 5th Respondent.**Omutimba advocate- We pray for 30 days stay of executionMuchiri advocate – They can be granted 30 days.Tribunal order:Claimant to grant Respondent 30 days stay of execution.Hon. J. Mwatsama Deputy Chairperson Signed 14. 12. 2023