[2022] KEHC 569 (KLR)

Mwaniki v Ng'ang'a Munene t/a Ng'ang'a Munene Company Advocates (Miscellaneous Civil Application 1 of 2017) [2022] KEHC 569 (KLR) (2 June 2022) (Ruling)

Neutral citation: [2022] KEHC 569 (KLR)

Republic of Kenya

In the High Court at Nyeri

Miscellaneous Civil Application 1 of 2017

FN Muchemi, J

June 2, 2022

Between

Daniel Githaiga Mwaniki

Applicant

and

Ng'ang'a Munene t/a Ng'ang'a Munene Company Advocates

Respondent

Ruling

1. This reference dated June 24, 2019 seeks to set aside and review the Taxing Master’s ruling dated November 16, 2017 on the Advocate/Client Bill of Costs dated January 13, 2017.

2. The respondent filed a preliminary objection dated July 4, 2019 but did not prosecute it.

The Applicant’s Case 3. The applicant states that the Taxing Master failed to properly tax the bill of costs dated January 13, 2017 according to the law as the bill was grossly exaggerated and completely unjustifiable. The applicant further states that the Taxing Master failed in her taxing role by taxing the bill of costs at a higher figure of Kshs. 115,312/- while the same was drawn at Kshs. 85,105/-.

4. The applicant contends that the Taxing Master failed to appreciate that the advocates’ attendances were paid for though he was not issued with any receipts. Furthermore, the applicant states that the advocates’ claims for disbursements were unsupported by receipts. As such, the applicant avers that the bill ought to be taxed as follows:-

5. On item No. 1, Kshs. 16,000/- ought to be taxed off as the agreed fees was Kshs. 14,000/-. There was no written agreement for the fee amounting to Kshs. 30,000/-.

6. On items 2, 3, 4, 6, 7, 9, 10, 11 & 12, the items ought to be taxed off as there was no evidence of service of the Hearing Notice upon M/s Sichangi & Co. Advocates.

7. On items 5 & 8, the same ought to be taxed off as there is no evidence that the advocates drew any affidavit of service.

8. On items 13, 14, 15 & 17, the applicant states that he paid the advocates a sum of Kshs. 2,000/- per each attendance although no receipts were ever issued to him and thus the said sum of Kshs. 2,000/- ought to be taxed off from each of the items.

9. On item 16, the sum of Kshs. 2,900/- ought to be taxed off as the hearing did not last a full day and thus the advocate is not entitled to Kshs. 5,000/- as claimed.

10. On the claim of 16% VAT, there is no evidence that the advocate paid VAT to the relevant agency.

11. On items 18, 19, 20 & 21, the advocate ought to prove the disbursements by producing the official court receipts.

12. The advocate caused the applicant to pay the sum of Kshs. 2,800/- on court adjournment fees due to his wilful failure to attend court on numerous occasions.

13. Parties agreed to dispose of the application by way of filing written submissions. During the mention date for confirming compliance, the respondent counsel told the court that they had abandoned the idea of filing submissions.

The Applicant’s Submissions 14. The applicant submits that the advocates filed two separate bill of costs, one dated January 13, 2017 for a sum of Kshs. 85,105/- and another dated January 17, 2017. The taxing master did not resolve the issue but proceeded to tax the bill dated January 17, 2017 which the applicant submits is a clear misapprehension of the law.

15. The applicant further submits that the bill of costs dated 13/01/2017 was grossly exaggerated and completely unjustifiable contrary to the provisions of the advocates remuneration order. The applicant reiterates what he stated in his application and pray that the orders of the taxing master be set aside and the bill be taxed as per the applicant’s submissions.

Issues for Determination 16. The main issues for determination as follows:a.Whether the application was served with the bill of taxation dated July 13, 2014. b.Whether the taxing office made any errors in principle in taxing the bill of costs.c.Who between the parties shall bear the cost of this reference.The Law Whether the reference offends the provisions of Rule 11(1) and (2) of the Advocates Remuneration Order

17. Rule 11 of the Advocates Remuneration Orderprovides:-1. Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects2. The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection.

18. The taxation ruling was delivered on November 16, 2017. The applicant did not within 14 days write to the taxing officer notifying her of the items he wished to object to. Consequently the taxing master did not give the applicant the reasons for the decision given. Although the courts have held that the taxation rulings contain the reasons for the ruling and therefore an applicant may file a reference without the receipt of the reasons. This principle was enunciated in Ahmednasir Abdikadir & Company Advocates v National Bank of Kenya Ltd (2) [2006] 1 EA 5 where 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 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.

19. Evidently, the applicant filed his reference on June 24, 2019 pursuant to the orders of Ngaah J which allowed the applicant to file the reference out of time. In any event I am of the considered view that the failure to comply with the provisions of Rule 11(1) and (2) of the Advocates Remuneration Order does not render this application incompetent. In the interest of justice, I am of the considered view that the court ought to consider the merits of the application.

20. The applicant denied having been served with the bill of taxation dated January 13, 2017 by the respondent. However, the court on perusal of the record came across an affidavit of service showing that the applicant was served with the Bill of Costs dated January 13, 2017 on 25/01/2017. The hearing notice was served together with the said bill of costs. The issue of service is therefore settled. It was the choice of the applicant not to defend the bill after he was duly served.

21. It is correct to say that the respondent filed two identical bills of costs with different dates. The magistrate taxed the one dated 13/01/2017. As such, the ill dated January 17, 2017 is hereby marked as having been abandoned.

Whether the applicant has made out a case for the review or setting aside of the taxing master’s assessment. 22. The law is settled that a court will only interfere with the taxing master’s decision where there is an error of principle. In Republic vs Ministry of Agriculture & 2 Others ex parte Muchiri W’njuguna & 6 Others [2006] eKLR it was held:-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, particularly where he is an officer of great experience, merely because it thinks that the award somewhat too high or too low; it will only interfere if it thinks the ward so high or so low as to amount to an injustice to one party or the other….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 interference that it was based on an error of principle.

23. In Machira & Co. Advocates v Magugu [2002] 2 EA where Ringera J (as he then was) held that:-As I understand the practice relating to taxation of bill of costs, any complaint about any decision of the taxing officer whether it relates to a point of law taken with regard to taxation or to a grievance about the taxation of any item in the bill of costs is ventilated by way of a reference to a judge in accordance with paragraph 11 of the Advocates Remuneration Order.

24. The Advocate/Client Bill of Costs is dated January 13, 2017 and was drawn for Kshs. 85,105/-. The taxing master taxed the said bill at Kshs. 115,312/-. On further perusal of the file, it is noted that the applicant had paid the respondent deposit legal fees as follows:-a.Kshs.4,000 vide receipt No. 4881 on 02/11/2015b.Kshs.10,000 vide receipt No. 4672 on 05/11/2014The taxing officer had before her a bill of taxation totalling to Kshs.85,105/=. The advocate/applicant had not taken into consideration the deposit paid to him in drawing the bill of taxation. The taxing officer in taxing the bill went ahead to add the deposit paid to the applicant instead of subtracting it. This brought the total taxed bill to Kshs.115,312/=. In my view, this was an error that can be described as mathematical but not an error in principle.

25. Having found that no error of principle was made by the taxing officer, I find that the taxed bill shall stand save for the correction of the mathematical error. The total taxed bill less the deposit paid is hereby corrected to read Kshs.85,105/= payable.

26. Considering the facts of this reference, I hereby order that each party meet their own costs of the reference.

27. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT NYERI THIS 2ND DAY OF JUNE, 2022. F. MUCHEMIJUDGERULING DELIVERED THROUGH VIDEO LINK THIS 2ND DAY OF JUNE, 2022.