[2023] KEELC 15991 (KLR)

Njaimwe v Ngugi & 2 others; Ngugi (Interested Party) (Environment & Land Case 380 of 2014) [2023] KEELC 15991 (KLR) (9 March 2023) (Ruling)

Neutral citation: [2023] KEELC 15991 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 380 of 2014

AA Omollo, J

March 9, 2023

Between

Annah Muthoni Njaimwe

Applicant

and

Phillip Kirichu Ngugi

1st Respondent

The Chief Land Registrar

2nd Respondent

Margaret Nyambura Ngugi

3rd Respondent

and

George Waweru Ngugi

Interested Party

Ruling

1. The Applicant filed a reference against the taxation of the bill of costs dated April 20, 2022 vide this chamber summons application dated October 31, 2022 seeking for the following orders;1. Spent2. That the decision of the taxing officer on the Respondents bill of costs dated April 20, 2022 delivered on September 27, 2022 as regards instruction fees on the claim and the counter-claim be set aside.3. That the bill of costs dated April 20, 2022 be referred back for taxation under a different taxing officer with appropriate directions.4. That this honorable Court grants any other relief that may be just to meet the ends of justice in this case.5. That the costs of this application be provided for.

2. The Chamber summons was supported by an affidavit sworn by Cynthia Nyabuto on October 31, 2022 stating that the Respondents filed a party and party Bill of costs dated April 20, 2022 against them for costs of Kshs 3,639,147. 60/- and the Bill of costs was taxed at Kshs 1,297,974/-, in which the taxing officer taxed instruction fees at Ksh 600,000 for the claim and Ksh 600,000 for the counterclaim.

3. The Applicant stated that in her filed submissions dated August 30, 2022, she contested the fees claimed under Items 1 and 2 because on Item 1, the value of the property was listed in the statement of Margaret Nyambura, the 3rd Defendant, at Ksh 3,500,000 hence instruction fees to defend the suit should have been Kshs 206,500/- as per schedule VI of the Advocates Remuneration Order,2009 since the value of the of the subject matter could be determined from the pleadings.

4. The Applicant further stated that on Item 2, the counterclaim does not disclose the value of the subject matter but invited the court to use Ksh 3,500,000/- considering the prayers in the counterclaim and plaint concern the same subject matter, therefore the instruction fees to prosecute the counterclaim should be a sum of Kshs 206,500/- as per schedule VI Par.1(n) of the Advocates Remuneration Order,2009.

5. The Applicant stated that the court acknowledged that indeed the suit property was bought for Kshs 3,500,000/- as per the court records but erroneously considered factors that were not applicable in the present matter arriving at an excessive instruction fee on the claim and counterclaim. The Applicant sought for stay of the said taxing officer’s ruling as she stands to suffer irreparable harm if the order for stay is not granted since the Respondents have obtained the certificate of taxation and are waiting for amendment of the decree in order to proceed with execution.

6. In response to the Applicant’s application, the 1st and 4th Defendants filed a replying affidavit sworn by Hellen Wambui on November 4, 2022 contending that the suit property was sold to her at Ksh 3,500,000/- in 2008 while the suit was filed in 2014, 7 years later and land being an appreciating asset and there being no valuation report filed to confirm the value as of year 2014, the purchase price of 2008 could not be termed as the value of the subject matter.

7. The Respondents contended that to determine the value of the subject matter, the taxing officer considered relevant factors within her discretion such as the size of the land being about ¾ acres and located in Githogoro Area in Runda, Nairobi ,interests of the parties, care and labour employed by counsel in the suit, proceedings and documents on record and time taken to conclude the suit and the fact that the suit property had appreciated to about Kshs 25,000,000/- in 2014,the amount awarded on instruction fees and counterclaim was not excessive.

8. The Respondents stated that the Applicant had not disclosed factors which ought not to have been considered by the taxing master or why the amount taxed is excessive therefore the taxing master did not error in principle and there is no justification to set aside the taxed costs and have the bill re-taxed.

9. The Applicant submitted that she filed her Notice of Objection to taxation on October 5, 2022, and the ruling was delivered on September 27, 2022. Hence the application is in compliance with Rule 11 of the Advocates Remuneration Order 2009 which provides as follows:“(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 objects.(2)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 the objection.”

10. The Applicant submitted that the taxing master erred in awarding items 1 and 2 in the bill of costs because despite acknowledging that indeed the subject property was bought for Kshs 3,500,000/-but still went ahead to consider factors not applicable and taxed the instruction fees at Kshs 600,000.

11. The question to be answered is ascertaining the value of the subject matter from which the instruction fee is chargeable. In the plaint filed in court in March 2014, the value of the property is not disclosed but the plaintiff pleaded at paragraph 4 thereof that she had bought the property for valuable consideration. I have perused the defence and counter-claim filed on May 14, 2014 and there is no mention of a value attached to the suit property. The Defendant’s counter-claim was premised on the fact that the suit property belonged to his deceased father hence registration of the plaintiff as the owner thereof was fraudulent.

12. The taxing master in her ruling observed that this suit was filed six years after the sale transaction between the Plaintiff and the 3rd Defendant hence leaving no doubt that the property had appreciated. She further considered the location of the property, the length of time taken to conclude the proceedings and the interests of the parties and decided to tax the instructions fee at Kshs 600000- and a similar amount for the counter-claim.

13. It is definite from the reasoning in the ruling that the taxing master was alive to the disclosed sum of Kshs 3,500,000 as the value of the property at the time of sale. She however took into consideration other intervening factors such as the duration it took to conclude the matter and the care and labour employed to prosecute the case. Consequently, the amount awarded of Kshs 600000 was not premised purely on the value of the subject matter at hand. This court will interfere with the exercise of such discretion only if it was not exercised judiciously.

14. It is my considered opinion and I so hold that since the issues in dispute did not revolve around the value of the subject matter, the taxing master was therefore not required to look into the location and size of the property while ascertaining the amount to be awarded as instructions fees. On the exercise of discretion under the labour and care employed to prosecute the matter, I note from the record that only three witnesses gave evidence (the plaintiff and 2 defence witnesses). The documents produced were neither many nor voluminous to earn instructions fees beyond that which is provided for in the Advocates Remuneration order. The case was concluded in a span of five years which is just the normal turn around for hearing and determination of land disputes in our courts.

15. Essentially, I find that there were no extraneous matters that merited the taxing master’s exercise of discretion to award fee beyond the amount provided for in the schedule. I hold that she did not exercise her discretion judiciously and was in error in taxing the Defendants instructions fee at Kshs 600000 instead of the Kshs 206,500= premised on value of Kshs 3,500. 000 that was pointed by the documents relied on in evidence.

16. In conclusion, the reference is allowed in terms of prayer 1 of the application. I proceed to set aside the taxing master’s order which taxed off the instructions fee on item 1 and 2 of the bill of costs at Kshs 600000 each. Instead, I make an order that the instructions fee to defend the suit is taxed at Kshs 206500 and the instructions fee on the counter-claim taxed at Kshs 206500. The rest of the items in the bill remain as taxed as they were not disputed. The costs of the reference awarded to the Plaintiff/Applicant.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 9TH DAY OF MARCH, 2023A. OMOLLOJUDGEIn the presence ofMs Nyabuto Advocate for ApplicantMs Waumbi-Njenga Advocate for the Respondent