[2022] KEHC 14977 (KLR)

Njeri v Mathenge (Civil Appeal 5 of 2017) [2022] KEHC 14977 (KLR) (2 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14977 (KLR)

Republic of Kenya

In the High Court at Nyeri

Civil Appeal 5 of 2017

JN Njagi, J

November 2, 2022

Between

Rosalia Nyawira Njeri

Appellant

and

Cecilia Wambui Mathenge

Respondent

(Being a reference from the order of the Taxing officer, R. Kefa, in the matter of the ruling on the Respondent`s Bill of Costs delivered on 27th July 2021)

Ruling

1. The respondent had filed a party to party bill of costs dated May 5, 2021 to the tune of Ksh.195,625/=. The same was taxed by the taxing officer as drawn. The appellant was dissatisfied with the taxation and filed the instant reference. By a notice dated August 19, 2021 the respondent objected to the following items:N0. 1 – being instruction fees of Ksh.120,000/=No.2 – being fees for getting up for hearing of the appeal of Ksh.40,000/=Nos.3 - 7 -being attendances to court for mention at Ksh.1900/= each.No. 10 -being record of appeal.No. 11 – being making 3 copies.No.12 – being submissions.

2. The reference is based on the grounds that the taxing officer did not exercise her discretion judiciously; that she took into account matters she should not have taken into account and failed to take into account matters she should have taken into account. That the costs arose from an order allowing the respondent`s case where the subject matter was an award of damages of Ksh.250,000/=. That the taxing officer should have thus been guided by the Advocates Renumeration Order when taxing the bill. That the taxing officer failed to justify the legal basis for instruction fees and the getting up fees. That there was no complexity, difficulty or novelty in the matter.

3. The respondent is consequently seeking that the decision of the taxing officer be set aside and that the bill of costs be remitted back to a different Taxing Officer for fresh taxation.

4. The reference was disposed of by way of written submissions. The advocates for the respondent filed submissions but the advocates for the applicant did not. Counsel for the respondent submitted that getting up fees are only allowed where the judge has certified that the appeal is a proper one for consideration of getting up fees. That in this appeal there was no certificate issued by a judge that this is a proper appeal for award of getting up fees. That the award was erroneous.

5. On the issue of instruction fees, it was submitted that the award in the lower court was Ksh.250,000/= which is the sum that was the subject of the appeal. Therefore, that instruction fees should have been taxed at Ksh.49,000/=.

6. It was submitted that the Taxing officer failed to take into account the principles of taxation set out in precedents as well as in the Advocates Renumeration Order. Counsel relied on the principles for taxation laid out in the case of Truth, Justice and Reconciliation Committee v Chief Justice of the Republic of Kenya & Another (2014) eKLR.

7. The governing principles that guides the court when dealing with a reference matter such as this one were stated in the case of Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board NRB CA Civil Appeal No. 220 of 2004 [2005] eKLR where the Court of Appeal stated as follows;On a 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. In Arthur v Nyeri Electricity Undertaking [1961] EA 497, the predecessor of this Court said at page 492 paragraph I:“where there has been an error in principle the court will interfere; but questions solely of quantum are regarded as matters with which the taxing officers are particularly fitted to deal and the court will interfere only in exceptional cases”.

8. This was also the holding in the case of First American Bank of Kenya vs Shah andothers [2002] 1 E.A. 64 at 69 where Ringera J. stated as follows:“First, I find that on the authorities, this 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 so manifestly excessive as to justify an inference that it was based on an error of principle…there is thus a general caveat on judicial review of quantum of taxation unless there is clear error of principle or the sums awarded are either manifestly high or low as to lead to an injustice.”

9. The issues for determination in this reference are whether the bill of costs was drawn to scale and whether the Taxing Officer committed any error of principle in taxing the bill of costs.

10. The main complaint is on the award on the instruction fees and getting up fees where the Taxing officer allowed an award of Ksh.120,000/= for instruction fees and Ksh.40,000/= for getting up fees.

11. The principles to be applied when assessing instruction fees in a suit are well settled. In Joreth Ltd v Kigano & Associates NRB CA Civil Appeal No. 66 of 1999 [2002] eKLR the Court of Appeal outlined the principle as follows:We would at this stage point out that the value of the subject matter of a suit for the purpose 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 ascertainable, the taxing officer is entitled to use his discretion to assess such instruction fee as he considers just, taking into account, among other matters, the nature and importance of the cause or matter, the interest of the parties, the general conduct of the proceedings, any direction by the trial judge and all other relevant circumstances.

12. In the case of Rachuonyo & Rachuonyo Advocates v National Bank of Kenya Limited [2021] eKLR, the court cited the Court of Appeal decision in Peter Muthoka & Another v Ochieng & 3 others NRB CA Civil Appeal No. 328 of 2017 [2019] eKLR where the principles in Joreth Ltd v Kigano & Associates (Supra) were expounded and the said court set down the proper basis of taxing instruction fees as follows;It seems to us quite plain that the basis for determining subject matter value for purposes of instruction fees is wholly dependent on the stage at which the fees are being taxed. Where it happens before judgment, it is the pleadings that form the basis for determining subject value. Once judgment has been entered, and for what seems to us to be an obvious reason, recourse will not be had to the pleadings since the judgment does determine conclusively the value of the subject matter as a claim, no matter how pleaded, gets its true value as adjudged by the court.………..It is only where the value of the subject matter is neither discernible nor determinable from the pleadings, the judgment or the settlement, as the case may be, that the taxing officer is permitted to use his discretion to assess instructions fees in accordance with what he considers just bearing in mind the various elements contained in the provision we are addressing. He does have discretion as to what he considers just but that discretion kicks in only after he has engaged with the proper basis as expressly and mandatorily provided: either the pleadings, the judgment or the settlement. He has no leeway to disregard the statutorily commanded starting point. And we think, with respect, that the starting point can only be one of the three. It is not open to the taxing officer to choose one or the other or to use them in combination, the provision being expressly disjunctive as opposed to conjunctive. It is also mandatory and not permissive.

13. In the instant matter, judgment had been delivered when the bill was taxed. The subject matter was therefore discernible from the judgment. The taxing officer would have been properly guided by Schedule 6 of the Advocates Remuneration Order, 2014when making the award on instruction fees. The taxing officer did not give reason why she awarded instruction fees at Ksh.120,000/=. I find that an error in principle was committed in the award on instruction fees.

14. Getting up fees in an appeal is chargeable under Schedule 6 of the Advocates Remuneration Order, 2014. Under the schedule, an advocate would only be entitled to getting up fees where a respondent appeared at the hearing of the appeal, and the court certified, at the conclusion of the appeal, that, in view of the extent or difficulty of the work involved, it was proper for consideration of a getting up fee. In the instant case the taxing officer did not give reason for awarding getting up fees. Neither was there a certificate by a Judge to support it. I accordingly find that an error in principle was committed in the award on getting up fees.

15. The other objections raised in the reference can be determined from the Advocates Remuneration Order 2014.

16. In taxing the bill, the taxing officer stated that the applicant had failed to file their objection to the bill and that the same was drawn to scale. The Taxing Officer therefore allowed the bill as drawn.

17. Whether the applicant had made a response to the bill or not it was the duty of the taxing officer to satisfy herself that the bill was drawn to scale. It is clear from the observations pointed out above that the bill was not drawn to scale and the Taxing Officer committed some errors in principle in taxing the bill. This court therefore has reason to interfere with the taxation.

18. In view of the foregoing, the ruling on the bill of costs dated July 27, 2021 is hereby set aside. Consequently, I order that the bill be remitted back to the Deputy Registrar of this court for fresh taxation by a different taxing Officer.

SIGNED THIS 14TH SEPTEMBER 2022. J.N. NJAGIJUDGEDELIVERED, DATED AND SIGNED AT NYERI THIS 2ND DAY OF NOVEMBER, 2022. By:HON. JUSTICE M. MUYAJUDGEIn the presence of:Miss Othaya: for ApplicantWawira holding brief for RespondentCourt Assistant: Kinyua30 days R/A.