[2022] KEHC 12943 (KLR)

Mutuku v Benjo Travellers Co. Ltd & another (Civil Miscellaneous Application E03 of 2022) [2022] KEHC 12943 (KLR) (20 September 2022) (Ruling)

Neutral citation: [2022] KEHC 12943 (KLR)

Republic of Kenya

In the High Court at Kitui

Civil Miscellaneous Application E03 of 2022

RK Limo, J

September 20, 2022

Between

Mary Wangai Mutuku

Applicant

and

Benjo Travellers Co. Ltd

1st Respondent

Stephen Muthini Ngazi

2nd Respondent

Ruling

1. Before me, is a reference by way of chamber summons dated January 24, 2022 brought by Mary Wangai Mutuku, the applicant who has invoked the provisions of section 3A of the Civil Procedure Act and rule 11(1) and (c) of the Advocates (Remuneration) Order 2014 in seeking the following reliefs namely: -a.That the decision of the taxing master delivered on January 12, 2022 in so far as the same relate to the reasoning and determination pertaining to the taxation of items 1,14,29,40,42,43,44,45,49,50 and 51 and the approved bill of Kshs 32,630 dated January 12, 2022 be set aside, varied and/or reviewed upwards.b.That the honourable court be pleased to refer the matter back for re-taxation of the aforesaid items as per prayer 1 above with proper directions or guides to the taxing master on the proper, or legal principles or rules of law to apply in considering the amounts awardable on the items objected to.c.That in the alternative to prayer 1 and 2 above, the honorable court be pleased to exercise its inherent jurisdiction and discretion and re-tax or re-evaluate the taxation process and thereafter or reverse the taxation awards in the bill of costs dated November 20, 2008 and filed on January 21, 2019 afresh with finality.d.That the costs of this reference application be provided for.

2. The grounds on the face of the record are as follows;a.That the applicant’s bill of costs dated 20th November was un-contested and the same proceeded for a ruling.b.That the taxing master rendered her determination dated January 12, 2022 and the applicant was gravely aggrieved and dissatisfied with the taxing master’s ruling theretoc.That the applicant filed her notice of objection dated January 20, 2022 determination of the un-contested bill of costs as per the ruling of the taxing master and set out key items of contestation and demanded for the reasoning of the taxing master.d.That the taxing master complied and supplied the ruling dated January 12, 2022 and from a foregoing reasoning, it is evident that;i.The taxing master did not apply the correct, proper and or/valid law and did not look at the correct factors, considerations, rules, principles of law and guidelines in evaluating the awardable costs in items 1,14,29,40,41,42,43,44,45,49,50 and 51 and by taxing the bill at Kshs 32,630/- despite the fact that the same was not objected and or contested, she fell into error and misdirection by disallowing some items even though they were statutoryii.The taxing master awarded an amount that was manifestly low and below average especially in item 1 where it is expressly provided in law despite the same being unopposed and as such the same was unjustified, unfounded, wrongful, unreasonable, irrational and illegitimateiii.The process, the reasoning and the awards given obviously overlooked or failed to take into consideration viable, legitimate factors, facts, principles, rules, considerations and essential matters relevant and essential in taxing a bill of costsiv.The total amount awarded in the bill of costs on the face of it and taking into considerations the circumstances that it was a bill of costs in an appeal was obviously manifestly and out rightly inordinately and unreasonably low and/or below average in normal cases or situations or taxationsv.The taxing master failed to comment on some important items in the bill of costs (items 42,43,44 and 45) without any justifiable explanation, reasoning and so, it is out-rightly clear that the taxing master was influenced by other factors, motives, considerations, interests and/or issues outside the normal taxation wisdom and/or failed to take into considerations relevant matters, factors and considerationsvi.It is evidently on record that some items were taxed off without any explanation yet the said items were minimum statutory fees expressly provided for in law hence she exercised her taxation discretion in a biased manner.e.That it is on the aforesaid premises therefore that the applicant has filed this reference for the review, revision, setting aside, varying or challenge of the taxation of the aforementioned items as particularly set out above.f.That it is in the interest of justice to avoid denying the applicant the fruits of her costs that it is safer that this reference be allowed, the matter be evaluated or re-taxed afresh in a manner that meets the ends of justice, ensuring that the applicant is not unjustly awarded a manifestly and or inordinately low amount.

3. The application is supported by the affidavit her Counsel Evalyne Wambui Mburu sworn on January 24, 2022. The deponent largely reiterates the foretasted grounds.

4. The applicant is mainly challenging the taxation of bill of costs dated November 20, 2008 and the main basis of the challenge and the reference is that the taxing master erred in taxing the bill which resulted in an inordinately low costs awarded which counsel submits is against the scale provided.

5. He has listed the following items namely item 1,14,29,40,41,42,43,44,45,49,50 and 51 as the items that should in his view be referred back for re-taxation.

6. The advocate averred that the award of Kshs 32,630 was inordinately low as the costs emanated from an appeal. And that the taxing master failed to provide detailed reasons for her ruling/taxation.

7. In his oral submissions in court, the advocate submitted that there was a misdirection on the part of the taxing master for using a non-existent schedule while taxing the instructions fee. He illustrated this by stating that the taxing master relied on schedule VI of the Advocates (Remuneration) Order instead of schedule VI (a) paragraph 1(c) of the Advocates (Remuneration) Order.

8. The applicant faults the taxing master for what he calls applying a non-existent schedule on appeal. According to him, the taxing master ought to have followed the provisions of schedule VI (A) paragraph 1 (c).Schedule VI (A) paragraph 1 (c) on instructions fees provides as follows;‘‘(c) To defend proceedings where the defendant substantially adopts the defence of another defendant; an instruction fee calculated under sub-paragraph 1(a).1(a) To sue in any proceedings (whether commenced by plaint, petition, originating summons or notice of motion) in which no defense or other denial of liability is filed, where the value of the subject matter can be determined from the pleading, judgment or settlement between the parties and…’’

9. She submits that the subject matter was valued less than Kshs. 100,000 and that on that basis the instructions fees ought to have been Kshs 49,000. This court however finds this contention erroneous because the subject matter that brought about the taxation arose from an appeal (Kitui HCC No 156/5- where the applicant was the respondent.

10. Paragraph 50 of the of the Advocates (Remuneration) Order provides for costs in High Court as follows;‘‘Subject to paragraphs 22 and 58 and to any order of the court in the particular case, a bill of costs in proceedings in the High Court shall be taxable in accordance with schedule 6 and, unless the court has made an order under paragraph 50A, where schedule 6 provides a higher and a lower scale the costs shall be taxed in accordance with the lower scale.’’

11. Instructions fees for representing a party to an appeal or opposing of an appeal is provided for under schedule VI paragraph 1 (b) which provides;‘‘To sue in any proceedings described in paragraph (a) where a defense or other denial of liability is filed; or to have an issue determined arising out of inter-pleader or other proceedings before or after suit; or to present or oppose an appeal where the value of the subject matter can be determined from the pleadings, judgment or settlement between the parties and;That value exceeds Kshs But does not exceed Kshs. Kshs

_ 500,000 75,000

12. The taxing master did not apply a non-existent schedule as advanced by the applicant because in her ruling she clearly refers to schedule VI of the Advocates Remuneration Order.

13. She stated that she was guided by schedule VI, which is the correct schedule, she however did not indicate the exact paragraph of the schedule that she was using. She then proceeded to tax item 1 as follows;‘‘For item I, it falls under instructions to present or oppose an appeal. I have considered the nature of appeal the volume of the pleadings and submissions in the file and I opine that the item should be taxed at Kshs 20,000/- as per appeals (a) page 292 Advocates Remuneration Order.’’

14. The taxing master stated that she was taxing instructions fee at Kshs 20,000 but she was not clear as to why she reached that figure because in her ruling she states that instructions fees should be taxed at Kshs 20,000 as per appeals (a) page 292 Advocates Remuneration Order. This court does not know if the above statement has a typographical error or the taxing officer did not clearly state her reasoning. There is no denying that sub paragraph 1 of schedule VI gives her the discretion so long as reasons are clearly assigned. The paragraph state;‘‘The fees for instructions in suit shall be as follows……. unless the taxing officer in his discretion shall increase or (unless otherwise provided) reduce it……’’

15. The applicant was bound to wait for a response from taxing officer for 14 days before filing this reference. The fact that he did not wait for reasons however is not fatal.In Ahmed Nassir v National Bank of Kenya Ltd [2006] eKLR. The court held: -‘‘Although rule 11(1) of the Advocates Remuneration Order stipulates that any party who wishes to object to the decision of the Hon Taxing Officer should do so within 14 days, after the said decision and thereafter file his reference within 14 days from the date of receipt of the reasons, where the reasons for the taxation on the disputed items in the bill are already contained in the considered ruling, there is no need to seek for further reasons simply because of the unfortunate wording of sub-rule (2) of Rule 11 of the Advocates Remuneration Order demands so. The said rule was not intended to be ritualistically observed even when reasons for the disputed taxation are already contained in the formal and considered ruling.”

16. The reasons for the ruling were in my view contained in the ruling, but they were not detailed, they appear as follows;Item 1, the taxing master considered the nature of the appeal, the volume of the pleadings and submissions in the file

For item 4, the taxing master was of the view that there was no justification for making 27 copies

Item 29 was considered a repetition

Items 41 and 50 were not drawn to scale according to the taxing master

While items 49 and 51 were taxed off as there was no proof of actual expenditure.

17. The taxing master did not comment on the following items, 42,43, 44 and 45 on attendances. Whereas there was no reason given for exclusion of the items, schedule 6 paragraph 7 provides for fees for court attendances. On this items, the taxing master erred in failing to comment on them. If at all no evidence was provided to substantiate the amounts cited for the items, the court should have indicated the same as a reason for taxing them off. Leaving them out without any reasons was erroneous in respectful view.

18. The Court of Appeal in Otieno, Ragot & Company Advocates v Kenya Airports Authority [2021] eKLR held thus in regard to the principles which this court should take into consideration when determining this reference:“…… it must be emphasized that matters of quantum of taxation are purely within the province, competence, and judicial discretion of the taxing officer. The High Court or even this court will not lightly interfere with an award of quantum by the taxing officer; unless an error of principle or the discretion was improperly exercised, resulting in injustice, to borrow the phrase used in the famous Mbogo v Shah [1968] EA 93. Specific to taxation, the court in Kipkorir Tito & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR was categorical that:“On reference to a Judge from the Taxation by the taxing officer, the judge will not normally interfere with the exercise of discretion by the taxing officer unless the taxing officer, erred in principle in assessing the costs”.

19. Mativo J in KANU National Elections Board & 2 others v Salah Yakub Farah [2018] eKLR stated as follows on interference with the decision of a taxing master’s;‘‘It is trite that the court will not interfere with the exercise of the taxing master’s discretion unless it appears that such has not been exercised judicially or it was exercised improperly or wrongly, for example, by disregarding factors which she should have considered, or considering matters which were improper for her to have considered, or she had failed to bring her mind to bear on the question in issue, or she had acted on a wrong principle. The court will however interfere where it is of the opinion that the taxing master was clearly wrong or in circumstances where it is in the same position as, or a better position than the taxing master to determine the very 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 or she was wrong must be considerably more pronounced than would have sufficed had there been an ordinary right of appeal.’’

20. In view of the afore-stated reasons, this court finds that the only viable option is to refer back this matter for re-taxation because in the absence of pleadings and proceedings this court is unable to do justice to the parties by attempting to tax the items under consideration.

21. The reference dated January 24, 2022 is therefore, allowed in terms of prayer (b) but I shall make no order as to costs. The bill of costs dated November 20, 2008 is referred back to the taxing officer for re-taxation and further orders.

DATED, SIGNED AND DELIVERED AT KITUI THIS 20TH DAY OF SEPTEMBER, 2022. HON JUSTIE RK LIMOJUDGE