[2022] KEHC 17187 (KLR)

Nduati & Company Advocates v Mugo (as the Administratrix of the Estate of the Late Peter Mugo Muigai) (Miscellaneous Application E313 of 2021) [2022] KEHC 17187 (KLR) (Civ) (14 November 2022) (Ruling)

Neutral citation: [2022] KEHC 17187 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Application E313 of 2021

DO Chepkwony, J

November 14, 2022

In The Matter Of: The Advocates Act Cap 16 And In The Matter Of: The Advocates Remuneration Order 2014 And In The Matter Of: Taxation Of Advocate/Client Bill Of Costs

Between

Nduati & Company Advocates

Applicant

and

Mary Wairimu Mugo (as the Administratrix of the Estate of the Late Peter Mugo Muigai)

Respondent

Ruling

1. Before this court for determination is a reference vide chamber summons application dated November 26, 2021 against the decision of hon Stephanie Githogori, Deputy Registrar, delivered on November 12, 2021. It seeks for orders that;a.This honorable court be pleased to set aside the ruling of the Taxing Master so delivered on the November 12, 2021;b.This honorable court be pleased to interfere with the entire decision of the Taxing Master and tax the bill of costs dated May 13, 2021 afresh or submit the bill of costs from fresh taxation before another Taxing Master in the Commercial Division;c.Costs be provided for.

2. The application is premised on the grounds set out on its face and the dispositions in the supporting affidavit of Stanley Nduati sworn on November 26, 2021. It has been stated that the applicant filed its bill of costs on May 13, 2021, which bill was taxed on November 12, 2021. That in taxing the bill, the Taxing Officer erred in principle by failing to acknowledge the applicant’s election to proceed under schedule 5 part II of the Advocate’s Remuneration Order and taxing off all other items save for instruction fees on the ground that they are not provided for under schedule 1 of the Advocates Remuneration Order despite the fact that the matter was non-contentious. Also, it has been stated that the Taxing Officer erred in principle by failing to set out the basic instruction fees before proceeding to vary the item on instructions and by failing to give any such reasons informing her decision on the item thus fell into an error of principle. That as a consequence of the foregoing errors, it is the applicant’s contention that the amounts so taxed are manifestly and inordinately low, hence not commensurate to the amount of work done since the Taxing Officer failed to consider relevant factors viz-a-vis the value of the subject matter, industry put in and time spent in executing the client instructions when assessing the bill of costs. It is further stated that the Taxing Officer failed to consider item 6 of the bill and disregarding the 3rd scale of item 3 of the Advocates Remuneration Order 2014 that provides for negotiations. It is therefore contended by the applicant that the Taxing Officer failed to exercise her discretion judiciously by failing to consider that an advocate should be fairly reimbursed for work done so as to attract new recruits into the profession and maintain the nobility and dignity of the profession.

3. The application is opposed vide the replying affidavit of mary wairimu mugo sworn on January 23, 2022, wherein it is stated that the applicant failed to serve his written submissions on the respondent’s advocate. It is also averred that the applicant has not demonstrated how the honorable Deputy Registrar exercised her discretion improperly as to the taxed amount to warrant the setting aside of the taxation ruling or how the taxed amount is excessive as to justify an interference with the ruling nor how the same ruling was based on an error of principle. As such, the respondent believes that this application is an abuse of the process of court and should be dismissed with costs.

4. on June 28, 2021, the parties were directed by the court to dispose of the application by way of written submissions and the applicant filed their submissions dated May 25, 2022 and so did the respondent.

Determination 5. To determine the reference filed herein, I have carefully read through the respective affidavits and submissions filed by the parties herein and taken into consideration the cited case and statute law. Having done so, I find the the following issues arise for determination:-a.Has the applicant satisfied the principles set out in law for setting aside a ruling on taxation of the bill of costs delivered by the Taxing Master; and,b.Should this court interfere with the said decision of the Taxing Master and tax the bill of costs afresh or submit it for fresh taxation before another Taxing Master in the Commercial Division.

6. On the onset, I wish to point out that the decision of a Taxing Officer is discretionary and this power can only be interfered with if the reference meets the conditions set out in the case of Nyangito & Co Advocates vs Doinyo Lessos Creameries Ltd [2014] eKLR, where Odunga J laid out the following principles for consideration in an application as the one before this court: -a.That 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 manifested excessive as to justify an inference that it was based on an error of principle;b.It would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors and, according to the Remuneration Order itself. Some of the relevant factors to be taken into account include the nature and importance of the cause or matter, the amount or value of the subject matter involved; the interests of the parties, the general conduct of the proceedings and any direction by the trial Judge;c.If the court considers that the decision of the taxing officer discloses errors of principle, the normal practice is to remit it back to the taxing officer for reassessment unless the Judge is satisfied that the error cannot materially have affected the assessment and the court is not entitled to upset a taxation because in its opinion.”

7. Similarly, in the case of Kipkorir, Tito & Kiara Advocates vs Deposit Protection Fund Board [2005] eKLR, the court observed;“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.”

8. The applicant’s contention is that the Taxing Officer ignored the notice of election as per paragraph 22(1) of the Advocates Remuneration Order on record in taxing the bill. I have perused the said notice of election dated April 28, 2021 and it is confirmed that indeed the applicant notified the respondent of his election to tax the bill under schedule V part II of theAdvocates Remuneration Order, 2014. The respondent does not deny service of the notice of election upon them.

9. Paragraph 22(1) of the Advocates Remuneration Order reads as follows;‘In all cases in which any other schedule applies an advocate may, before or contemporaneously with rendering a bill of costs drawn as between advocate and client, signify to the client his election that, instead of charging under such schedule his remuneration shall be according to schedule v, but if no election is made his remuneration shall be according to the scale applicable under the other schedule.’

10. A further perusal of the Taxing Officer’s ruling delivered on November 12, 2021 shows that the bill was taxed under schedule 1 of the Advocate’s Remuneration Order. Strangely and glaringly, I find that the Taxing Officer ignored the applicant’s notice of election on record and without reason. I am therefore satisfied that this is an error of principle on the part of the Taxing Officer, which renders her ruling upset.

11. In the upshot, the reference herein is meritable and succeeds with costs to the applicant. Consequently, the bill of costs dated May 13, 2021 be and is hereby returned for fresh taxation as per the notice of taxation before another Taxing Officer within the division.

12It is so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 14 TH DAY OF NOVEMBER , 2022. D. O. CHEPKWONYJUDGE