[2022] KEHC 12521 (KLR)

Mungai & another v Mungai (Miscellaneous Reference Application 196 of 2019) [2022] KEHC 12521 (KLR) (Family) (16 May 2022) (Ruling)

Neutral citation: [2022] KEHC 12521 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Miscellaneous Reference Application 196 of 2019

AO Muchelule, J

May 16, 2022

Between

Hannah Wanjiru Mungai

1st Applicant

Eliud Mugu Mungai

2nd Applicant

and

Kariuki Mungai

Respondent

Ruling

1. The background of this reference is that the respondent Kariuki Mungai had successfully petitioned this court in Succession Cause No 793 of 2010 for the grant. The grant had been confirmed on May 18, 2011. The cause was in respect of the deceased Mungai Mundia. The applicants Hannah Wanjiru Mungai and Eliud Mugu Mungai instructed Kangethe Waitere & Co Advocates who filed an application dated May 23, 2017 seeking several orders, including the revocation of the grant as confirmed and for provision under section 26 of the Law of Succession Act (cap 160). The respondent was represented by Muraguri, Muigai, Waweru & Co Advocates. He opposed the application by filing grounds of opposition and a replying affidavit. The application was heard through written submissions. The same was dismissed with costs to the respondent.

2. The respondent’s advocates filed a party and party bill of costs dated May 24, 2019 before the taxing officer. The parties agreed to have the bill of costs determined on the basis of written submissions. The respondent’s advocates filed written submissions. The applicants’ advocates did not file a response to the bill of costs. Neither did they file written submissions. The total amount sought in the bill of costs was Kshs 752,513/20. Instruction fees sought was Kshs 500,000/=. The taxing officer taxed the entire bill of costs at Kshs 224,599/20. Instructions fees was taxed at Kshs 150,000/=. of the Kshs 224,599/20, Kshs 30,979/02 represented VAT. The bill had been taxed on the basis of schedule 10 of the Advocates (Remuneration) Order, 2014. The decision on the bill of costs was rendered on November 21, 2019.

3. This reference dated December 17, 2019 was brought against the decision of the taxing officer. It basically challenged the taxation in regard to instructions fees and VAT that had been added to it. It sought the setting aside of the taxation and also that there be fresh taxation before a different taxing officer. The grounds for opposing the decision were as follows:-“1. The taxing master erred and was clearly wrong in using the Advocates (Remuneration) (Amendment) Order 2014 to tax the party and party bill of costs dated May 24, 2019 in Succession Cause No 793 of 2010 instead of using the Advocates (Remuneration) (Amendment) order 2006. 2.The taxing master allowed items not provided for by the Advocates Remuneration Order.3. The amount of costs awarded as Instruction Fees in item 1 is not justifiable.4. The amounts allowed is excess and unjustifiable.5. The taxing master erred in applying VAT on the amount allowed in a party and party bill of costs.”Karen Kangethe of the applicants’ firm of advocates swore a supporting affidavit to support the application in which the grounds were reiterated.

4. The application did not receive any response. The applicants’ advocates filed written submissions which I have read and considered.

5. It is now trite that this 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 that the fees awarded was so manifestly excessive or low as to justify an inference that it was based on the error of principle (First American Bank of Kenya v Shah &others [2002] EA 64).

6. In dealing with this reference, I bear in mind that the objective of taxation is to award the party who has been awarded an order for costs a full indemnity for all costs reasonably incurred by him or her in relation to his claim or her claim or defence and to ensure that all costs shall be borne by the party against whom such order has been awarded (KANU National Elections Board & 2 others v Salah Yakub Farar [2018] eKLR).

7. Starting with the question of VAT that was added on the taxed costs, I consider this was not an advocate-client bill of costs. Neither party fetched or supplied services to the other, and there was no evidence that the respondent had paid VAT and was subsequently entitled to indemnity (Pyramid Motors Ltd v Langata Gardens Ltd [2015] eKLR). The taxing officer was wrong to add VAT on the taxed costs.

8. On the question of which Advocates (Remuneration) Order was applicable, I consider that, although the succession cause was filed in 2010, the instructions to defend the summons for revocation were received in 2017. It follows that the taxation correctly based on Advocates (Remuneration) Order2014. The argument that it ought to have been on the basis of the Advocates (Remuneration) (Amendment) Order 2006 has no basis.

9. Under schedule 10 paragraph (f) instruction fees provided is reasonable but not less than 10,000/=. The taxing officer taxed instruction fees at Kshs 150,000/=. She stated that she had considered the nature of the matter, the background work that needed to be done in the case, the general conduct of the proceedings and the interests of the respondent. She also noted that the application had been before the court for two years.

10. This was not a complex application. There was no evidence that the applicants had been responsible for the matter being in court for two years. There was no untoward conduct on the part of the applicants that was demonstrated. The taxing officer indicated that she had considered the nature of the case, but did not make reference to the fact that this was a mere application that had been heard on affidavit evidence and written submissions. The result was that the taxing officer did not consider some relevant matters, and also considered irrelevant matters. This means that the taxing officer did not exercise her discretion properly which led to erroneous decision.

11. In conclusion, I find that the decision of the taxing officer was wrong. It is hereby set aside. The bill of costs dated May 24, 2019 shall be taxed afresh by another taxing officer.

12. Costs usually follow the event, but I consider that the applicants did not defend the taxation before the taxing officer. Had they defended it the present situation would probably have been avoided. I do not therefore award costs.

DATED AND DELIVERED AT NAIROBI THIS 16TH DAY MAY 2022AO MUCHELULEJUDGE