[2023] KEHC 19957 (KLR)

Muthomi & Karanja Advocates v Nairobi City County Assembly (Miscellaneous Civil Application E013 of 2021) [2023] KEHC 19957 (KLR) (Constitutional and Human Rights) (30 June 2023) (Ruling)

Neutral citation: [2023] KEHC 19957 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Miscellaneous Civil Application E013 of 2021

M Thande, J

June 30, 2023

Between

Muthomi & Karanja Advocates

Applicant

and

Nairobi City County Assembly

Respondent

Ruling

1. Before Court for determination is the Application by the Advocate/Applicant dated 31. 3.22 brought pursuant to Rule 11(1) and (2) of the Advocates (Remuneration) Order seeking orders that:1. The Honourable Court be pleased to set aside the ruling of the Taxing Master Hon. Njeri Thuku made on 22nd March 2022 in respect of items (1) and (2) of the Advocate-Client Bill of Costs dated 27th May 2021 (the Bill).2. The Honourable Court be pleased to re-assess items (1) and (2) of the Bill or remit the Bill of costs for taxation by another Taxing Master.3. The Honourable Court be pleased to interrogate the Applicant’s Bill of Costs in light of the actual work done and adopt the Applicant’s proposal on taxation of the costs.4. That the costs of this application be provided for.

2. The Application is premised on the grounds on the face of it and in the affidavit sworn on even date by Samuel Karanja. The grounds are, that the learned Taxing Master made an error of principle when she taxed items 1 (instruction fees) and 2 (getting up fees) of the Bill at a lesser sum than the Party and Party Bill of Costs dated 11. 10. 19, contrary to the provisions of Schedule VI Part B of the Advocates (Remuneration) Order 2014 (ARO). The Advocate/Applicant’s complaint is that they filed the Bill seeking the sum of Kshs. 9,206,814. 00/=. Upon taxation, the Taxing Master only allowed the sum of Kshs. 502,249. 80/= with items (1) and (2) being taxed at Kshs. 100,000/- and Kshs. 33,333/- respectively. According to Advocate/Applicant, Hon. C Kithinji had on 5. 12. 19 taxed the Party and Party Bill of Costs dated 11. 10. 19 and allowed it in a sum of Kshs. 512,605. 00/= having taxed the instruction fees at Kshs. 400,000/=. The minimum amount the Taxing Master would have allowed on items 1 and 2 of the Bill was Kshs. 600,000/= and Kshs. 200,000/= respectively. Hence in arriving at the figures allowed in Items 1 and 2, the Taxing Master misdirected herself both in law and fact and failed to apply the formula set out in Schedule 6 Part B of the ARO. She therefore erred in principle and failed to give due consideration to the provision under Schedule 6(1) (j) of the ARO.

3. The Advocate/Applicant further contends that the Taxing Master also failed to consider judicial precedent which enjoins a taxing officer in constitutional petitions and prerogative orders to give consideration to other factors including the nature and importance of the petition to the parties; the public importance; the responsibility weighing on counsel’s shoulders and the time expended by counsel, when assessing the instruction fees. She failed to consider the Advocate/Applicant’s submissions on the disputed items of the Bill of Costs and particularly item (1) on the stakes involved including the subject matter of the petition being the prestigious position of a Speaker of the Nairobi City County Assembly and attendant benefits, the great public importance and the interest of parties and hence an enhanced responsibility on Advocate/Applicant. Lastly, she failed to exercise her discretion judiciously by allowing instruction fees that was manifestly too low, all relevant factors considered. Consequently, the taxation of the Bill by the Taxing Master was based on an error of principle as to justify an interference. It is thus the Advocate/Applicant’s contention that given that the party and party bill of costs was taxed on 5. 12. 19 and the instruction fee allowed at Kshs. 400,000/=, the Taxing Master ought to have increased that instruction fee allowed, by one half.

4. The Client/Respondent countered this by submitting that a bill of costs is not meant punish a party who pays costs but to compensate the other party for costs actually and reasonably incurred. The Client/Respondent contended that the Taxing Master noted that the petition in question was straight forward and was determined on the basis of a preliminary objection and did not proceed to trial. Further that the ARO provides for the sum of Kshs. 100,000/= as instruction fees. The Client/Respondent urged the Court to uphold the Taxing Master’s Assessment.

5. Party and Party costs in constitutional matters and the taxation thereof are provided for in Paragraph 1(j) of Schedule 6 of the ARO as follows:To present or oppose an application for a Constitutional and Prerogative Orders such fee as the taxing master in the exercise of his discretion and taking into consideration the nature and importance of the petition or application, the complexity of the matter and the difficulty or novelty of the question raised, the amount or value of the subject matter, the time expended by the advocate—i.where the matter is not complex or opposed such sum as may be reasonable but not less than 45,000ii.where the matter is opposed and found to satisfy the criteria set out above, such sum as may reasonable but not less than 100,000iii.…

6. As regards advocate and client costs, Part B of Schedule 6 provides that the instruction fees shall be the fees prescribed above, increased by 50%. It provides as follows:As between advocate and client the minimum fee shall be—a.the fees prescribed in A above, increased by 50%; orb.the fees ordered by the court, increased by 50%; orc.the fees agreed by the parties under paragraph 57 of this order increased by 50%; as the case may be, such increase to include all proper attendances on the client and all necessary correspondences.

7. In a contested constitutional matter, the prescribed minimum instruction fees under Part A of Schedule 6 as between party and party is Kshs. 100,000/=. As between advocate and client, the amount shall be increased by 50%. The advocate client instruction fee may be that prescribed in Part A plus 50%, the fee ordered by the Court plus 50% or the fees agreed by the parties plus 50%.

8. Where fees have been ordered by the court upon taxation of a party and party bill of costs, it is not necessary to tax the advocate-client bill of costs. To arrive at the instruction fee between an advocate and his client, the Taxing Master need only increase the instruction fee determined upon taxation of the party and party bill of costs. In this regard, I associate with the sentiments expressed in the case of Nyangito & Co. Advocates v Doinyo Lessos Creameries Ltd [2014] eKLR, by Odunga, J. (as he then was) who stated:With respect to the increase under part B of Schedule VI my understanding is that such increase is only applicable where there has been a determination of the party and party fees under part A of the said schedule in which case instead of taxing the advocate/client bill the court may simply decide to increase the amount of party and party costs under Part A as provided under part B. In this case there is no evidence that there was a determination on party and party costs in order for part B to be invoked.

9. And in the case of Otieno, Ragot & Company Advocates v Kenya Airports Authority [2021] eKLR, the Court of Appeal stated:Schedule VI Part B on the other hand makes it patently clear that instruction fees for advocate and client costs will be one-half of the party and party costs prescribed, or as ordered by a court or agreed upon by the parties. In addition, from a further introspection of Schedule VI, it is instructive that whereas Part A allows for the exercise of discretion to increase or reduce the instruction fees, under Part B no provision was made for any further exercise of discretion to increase or reduce the advocate’s fees once the one-half formula is applied to the instruction fees ascertained in Part A. It therefore stands to reason that Part B, being Advocate and client costs cannot be ascertained independently unless and until Part A is determined, since the instruction fees in Part B is an arithmetical computation derived from the instruction fees in the party and party costs determined in Part A.

10. Flowing from the above authorities, it is evident that the Taxing Master in taxing the advocate-client bill of costs had no discretion to increase or decrease the instruction fees. She was bound by the amount determined in the taxation of the party and party bill of costs. Indeed, all she needed to do was increase the instruction fee amount allowed, by 50%. I accordingly find that the Taxing Master erred in exercising a discretion she did not have. She misdirected herself by disregarding the amount allowed in the party and party bill of costs and allowing the minimum prescribed amount. In her assessment of the instruction fee in question, the Taxing Master ought therefore to have increased the instruction fee of Kshs. 400,000/= allowed in the party and party bill of costs by 50% to make it Kshs. 600,000/=. The getting up fee ought to have been Kshs. 200,000/= being 1/3 of the instruction fee.

11. In view of the foregoing, I find that the Application dated 31. 3.22 is merited and is allowed on the following terms:i.The ruling of the Taxing Master of 22. 3.22 in respect of items 1 and 2 of the Advocate-Client Bill of Costs dated 27. 5.21 is hereby set aside.ii.The instruction fee is allowed at Kshs. 600,000/= and the getting up fee is allowed at Kshs. 200,000/=.iii.The Advocate/Applicant shall have costs.

DATED, SIGNED AND DELIVERED IN NAIROBI THIS 30TH DAY OF JUNE 2023. ..............................M. THANDEJUDGEIn the presence of: -…………………… for the Advocate/Applicant………………………… for the Client/Respondents……………………………… Court Assistant