[2022] KEHC 14999 (KLR)

Nchooro v Mbaka & Gatavi (Suing as the legal representatives of the Estate of the Late Venanzia Wawira Muriithi (Deceased) & another; Njeru (Third party) (Civil Appeal 56 & 55 of 2018 (Consolidated)) [2022] KEHC 14999 (KLR) (9 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14999 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal 56 & 55 of 2018 (Consolidated)

LM Njuguna, J

November 9, 2022

Between

Geoffrey M’Mwenda Nchooro

Appellant

and

John Muriithi Mbaka & Milka Gatavi (Suing as the legal representatives of the Estate of the Late Venanzia Wawira Muriithi (Deceased)

1st Respondent

Attorney General

2nd Respondent

and

Timothy Samba Njeru

Third party

Ruling

1. The applicant herein filed two chamber summons both dated September 23, 2021 and wherein he has sought for orders that;i.The decision by the Taxing Master delivered on September 13, 2021 as far as the same relates to taxation of item one and all court attendances of the party and party bill of costs and the dismissal of the bill of costs thereon and the reasoning with respect to the said dismissal be and is hereby set aside.ii.The honourable court be pleased to retax the said bill of costs.iii.Costs of the applications be provided for.

2. In HCCANo 55 of 2018, the application is premised on the grounds on its face and its supported by the affidavit of DN Njagi wherein it was deposed that the bill of costs dated March 29, 2021 was taxed on September 13, 2021 and dismissed. That the Taxing Master failed to take into consideration that instructions were received on the date of service of the memorandum of appeal and further that, she did not exercise her discretion judiciously in that she abdicated her duties by holding that instructions can only be taken after admission of the appeal. It was his contention that the Taxing Master failed to take into account that the bill was not opposed and as such, the same ought to have been allowed as drawn. The applicant swore that the Taxing Master’s decision is devoid of any basis in law and as such, this honourable court has jurisdiction to set aside the same and/or re-assess the costs payable.

3. In HCCA 56 of 2018, the application is premised on the grounds on its face and its supported by the affidavit of DN Njagi wherein it was deposed that the bill of cost dated March 29, 2021 was taxed on September 13, 2021 at a sum of Kshs 41,225/=. That the taxing master erred both in law and fact by failing to take into account the fact that the ARO 2014 schedule 6(b) clearly provides for instructions fee at Kshs 120,000/= as well as getting up fees. It was deposed that the taxing master erred by awarding Kshs 30,000/= without setting out reasons thereof. In the end, this court was urged to grant the orders sought in the application herein.

4. In HCCANo 55 of 2018, the appellant opposed the application vide a replying affidavit sworn on May 12, 2022 and wherein it was deposed that the appeal was preferred against the ruling delivered on October 4, 2018 in Runyenjes SPMCC No 54 of 2015 John Muriithi Mbaka & Milka Gatavi (suing as representatives of the estate of Venanza Wawira Muriithi v Geoffrey M’Mwenda Nchooro & the Attorney General and in SPMCC 66 of 2015 Mercy Waweru Nyaga v Geoffrey M’Mwenda Nchooro & the Attorney General being Civil Appeal NosHCCA No 56 of 2018 and HCCA55 of 2018. That the two appeals were consolidated, heard and a judgment delivered on December 17, 2020 dismissing the same with costs.

5. Further, it was deposed that the bill of costs contained mistakes which the Taxing Master was not prepared to overlook as explained in paragraphs 8 to 14 of the ruling. That the bill of costs in HCCA 55 of 2018 was a replica of that in HCCA 56 of 2018 and it failed to take into account differences in both relating to respective dates. Further that, the consequences of the misstatement of dates as set out in paragraph 9 of the ruling was that, all the attendances were wrongly drawn as the record did not bear any semblance of a sitting on the dates cited. In the same breadth, it was deposed that the Taxing Master’s observations in respect of the date of instructions vis a vis when the appeal was admitted are premised on order 42 rule 12 of the Civil Procedure Rulesand further, the objectors were aware of the shortcomings as enumerated on the bills of costs as evident from the observations in paragraphs 3 and 12 of the ruling. That instead of the objector seeking leave to amend the bill of costs under rule 71 of the ARO, he opted to proceed with the taxation asking the Taxing Master to ignore the glaring errors. In the end, it was prayed that there is no justification in disturbing the Taxing Masters decision as sought.

6. In Civil Appeal No 56 of 2018, the appellant via a replying affidavit dated the May 12, 2022 deposed that the appeal was against a ruling delivered on the October 4, 2018 in Runyenjes SPMCCNo 54 of 2015 which also applied to SPMCC No 66 of 2015.

7. That this appeal was not from a final judgment/decree of the lower court but from a ruling on an interlocutory notice of motion vide which the appellant sought to have proceedings against him struck out on grounds that the plaintiff, having obtained judgment against the 2nd respondent, could not, in law pursue further proceedings against the appellant arising from the same cause of action; given that the subject matter of that interlocutory application and the resultant appeal was not monetary but a legal question. It was its case that schedule 6 paragraph 1(b) of the ARO 2014 is therefore not applicable in determining due instruction fees in this case and therefore, the objections against the findings of the Tax Master are unjustified.

8. The parties took directions that the application be dispensed with by way of written submissions and which directions were complied with by the parties.

9. I have considered the application herein and the applicants’ submissions and it is my view that the main issue for consideration is whether the application herein is merited.

10. The beginning point is whether the taxing officer properly exercised her discretion in determining the bill of costs.

11. As to whether the taxing officer was obliged to apply the instruction fees discerned in the bill of costs or to exercise her discretion to arrive at the instructions fees, requires that I turn to the Advocates Remuneration Order 2014, which is the relevant version of the order, for guidance.

12. In Civil Appeal 56 of 2018, the applicant has submitted that the Tax Master erred by failing to take into account the fact that the ARO 2014schedule 6(b) clearly provides for instructions fee at Kshs 120,000/= as well as getting up fees. That the Tax Master erred by awarding Kshs 30,000/= without setting out reasons thereof. The respondent on the other hand submitted that this appeal was not from a final judgment/decree of the lower court but from a ruling on an interlocutory notice of motion and given that the subject matter of that interlocutory application and resulting appeal was therefore not monetary but a legal question. It was its case that schedule 6 paragraph 1(b) of the ARO 2014 is therefore not applicable in determining instruction fees in this case and therefore, the objection against the findings of the Tax Master are unjustified.

13. Having perused the record, I find that indeed the appeal herein was in regard to the ruling of Hon Mwendwa (SRM) in PMCC No 54 of 2015 delivered on October 4, 2018 wherein the appellant had filed a notice of motion dated June 8, 2018 seeking to have the suit against him struck out on account of it being res judicata. It therefore follows that the appeal herein was solely based on the said application hence not on a substantive appeal. The question therefore is, was the value of the subject matter of the suit herein ascertainable?

14. I seek refuge in the case of Joreth Ltd v Kigano & Associates [2002] eKLR, the Court of Appeal addressed the issue thus;“We would at this stage point out that the value of the subject matter of a suit for the purposes of taxation of a bill of costs ought to be determined from the pleadings, judgment or settlement (if such be the case) but if the same is not so ascertainable the taxing officer is entitled to use his discretion to assess such instruction fee as he considers just, taking into account, amongst other matters, the nature and the importance of the cause or the matter, the interest of the parties, general conduct of the proceedings, any direction by the trial judge and all other relevant circumstances.”

15. I am therefore in agreement with the reasoning of the Tax Master that indeed the value of the subject matter could not easily be ascertained for the already given reason and that the most appropriate rule in my view, which the Tax Master equally adopted stipulates thus: to present or oppose an appeal in any case not provided for above; such sum as may be reasonable but not less than Kshs 25,200/=. In that regard, I am inclined not to interfere with the finding of the Tax Master in 56 of 2018.

16. In Civil Appeal No 55 of 2018, I have independently perused the said bill of costs dated March 29, 2021 and given that the course of action equally emanated from an appeal relating to the said ruling of Hon Mwendwa (SRM) in PMCC No 54 of 2015 delivered on October 4, 2018. I find that the same was not a substantive appeal and the value of the subject matter could not be ascertained and the same ought to have been taxed under schedule 6(1)(b) and the applicant is entitled to instruction fees under that schedule. I have also confirmed that some attendances are correctly reflected in the record and the attendance fees should be awarded.

17. I therefore order that the bill of costs in HCCA No 55 of 2018 be remitted to a different Tax Master to be taxed afresh having regard to the findings above.

18. The respondent is awarded costs of the chamber summons in HCCA No 55 of 2018.

19. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 9TH DAY OF NOVEMBER, 2022. L. NJUGUNAJUDGE……………………………….…..….for the Appellant……………………………………for the Respondents