[2021] KEELC 2869 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA

ELC MISC. CASE NO. 18 OF 2019

OWITI OTIENO & RAGOT ADV. ...........................................PLAINTIFF

VERSUS

MUMIAS SUGAR CO. LTD. ...................................................DEFENDANT

RULING

The application is dated 23rd September 2020 and is brought under Rule 11 of the Advocates Remuneration Order seeking the following orders that;

1. The learned Deputy Registrar’s decision dated and delivered on 24th July, 2019 by which;

(a) He taxed off item 1 of the applicant’s advocate/client’s Bill of Costs dated 18th March, 2019 be set aside.

(b) He taxed Ksh. 57,695,918. 00 off item 2 of the applicant’s Bill of Costs dated 18th March, 2019 being getting-up fees be set aside.

(c) He taxed off items 8, 12, 15, 17, 19, 22, 23, 25, 27, 30, 38, 43, 45, 47, 53, 61, 64, 66, 72, 74, 76, 81, 83, 85, 88, 98, 101, 103, 107, 109, 112, 125, 127, 129, 137, 141, 142, 146, 148, 13, 21, 77, 78, 79, 121, 122, 123, 153, 156, 157, 164, 168, 170, 173, 174, 176, 177, 185, 187, 188, 191, 192, 193, 194, 195, 198, 203, 204, 158, 159, 160, 161, 162, 171, 172, 175, 179, 180, 182, 163, 166, 189 and 167 be set aside.

2. This honourable court be pleased to direct that items 1, 2, 8, 12, 15, 17, 19, 22, 23, 25, 27, 30, 38, 43, 45, 47, 53, 61, 64, 66, 72, 74, 76, 81, 83, 85, 88, 98, 101, 103, 107, 109, 112, 125, 127, 129, 137, 141, 142, 146, 148, 13, 21, 77, 78, 79, 121, 122, 123, 153, 156, 157, 164, 168, 170, 173, 174, 176, 177, 185, 187, 188, 191, 192, 193, 194, 195, 198, 203, 204, 158, 159, 160, 161, 162, 171, 172, 175, 179, 180, 182, 163, 166, 189 and 167 be taxed as drawn.

3. This honourable court be pleased to re-tax the items the subject matter of this reference in the manner sought herein or to make such further directions as to the fresh taxation of the applicant’s Bill of costs dated 18th March, 2019 as the court may be deem just and reasonable.

4. Costs of this reference be provided for.

It is supported on the grounds that the Learned Deputy Registrar made an error of principle in basing his decision on items 1 and 2 on the fact that the suit was filed in the year 2008 yet this was an advocate/client bill of costs and the evidence was clear that instructions were given to the applicant in January, 2010. The learned Deputy Registrar made an error of principle in taxing the applicant’s bill of costs under Schedule 6A (1) (ii) when the applicable scale was schedule 6B of the Advocates (Remuneration) Order, 2009. The learned Deputy Registrar finding on items 1 and 2 was plainly wrong considering that the value of the subject was never in dispute. The decision of the taxing officer on these two items was not supported by the facts before the taxing officer. The learned Deputy Registrar finding that all items in the bill relating to correspondence, travelling, subsistence and costs of sending correspondent were not provided for in the Advocates Remuneration Order was bizarre to say the least and completely misguided as a matter of fact and law. The applicant relied on the proceedings before the Honourable Deputy Registrar in this cause.

This court has considered the application and the submissions therein. The procedure for the challenge of a taxing master's decision is provided under Rule 11 of the Advocates Remuneration Order which provides as follows:

“(1) Should any party object to the decision of the taxing officer, he may within 14 days after the decision give notice in writing to the taxing officer of the items of taxation to which the 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 his objection.”

Be that as it may, the principles of varying or setting aside a Taxing Master’s decision as set out in the cases of First American Bank of Kenya vs Shah and Others (2002) EA 64 and Joreth Ltd vs Kigano and Associates (2002) 1 EA 92, that the Taxing Master’s judicial discretion can only be interfered with when it is established that the there was an error of principle, that the fee awarded is manifestly excessive for such an inference to arise, and where discretion is exercised capriciously and in abuse of the proper application of the correct principles of law. In First American Bank of Kenya vs Shah and Others (2002) E.A.L.R 64 the court held that;

“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”.

These principles reiterate the position of the Court of Appeal in Joreth Ltd vs Kigano & Associates (2002)eKLR, where the said Court held that a taxing master in assessing costs to be paid to an advocate in a bill of costs was exercising her judicial discretion and that such judicial discretion can only be interfered with when it is established that the discretion was exercised capriciously, and in abuse of proper application of the correct principles of law, or where the amount of fees awarded by the taxing master is excessive to amount to an error in principle.

The applicant in the instant application contends that being dissatisfied with the taxing officer’s decision, issued a notice of objection. The taxing officer stated that he used the 2006 Advocates Remuneration Order because the case was filed in 2008. That the taxing officer failed to take into account that the applicant’s was instructed in 2010 and the 2009 Advocates Remuneration Order should have been used. That the taxing officer taxation was not based on 2006 Advocates Remuneration Order and yet this was not a party and party bill of costs.

In Republic vs. Minister for Agriculture & 2 Others ex parte Samuel Muchiri W’njuguna (2006) eKLR Ojwang, J (as he then was) expressed himself as follows:

“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 the award somewhat too high or too low; it will only interfere if it thinks the award 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 inference that it was based on an error of principle. Of course it would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors. And according to the Advocates (Remuneration) Order itself, some of the relevant factors to take into account include the nature and importance of the case or matter, the amount or value of the subject matter involved, the interest of the parties, the general conduct of the proceedings and any direction by the trial judge. Needless to state not all the above factors may exist in any given case and it is therefore open to the taxing officer to consider only such factors as may exist in the actual case before him. 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…A taxing officer does not arrive at a figure by multiplying the scale fee, but places what he considers a fair value upon the work and responsibility involved…Since costs are the ultimate expression of essential liabilities attendant on the litigation event, they cannot be served out without either a specific statement of the authorising clause in the law, or a particularised justification of the mode of exercise of any discretion provided for…The complex elements in the proceedings which guide the exercise of the taxing officer’s discretion, must be specified cogently and with conviction. The nature of the forensic responsibility placed upon counsel, when they prosecute the substantive proceedings, must be described with specificity. If novelty is involved in the main proceedings, the nature of it must be identified and set out in a conscientious mode. If the conduct of the proceedings necessitated the deployment of a considerable amount of industry and was inordinately time-consuming, the details of such a situation must be set out in a clear manner. If large volumes of documentation had to be classified, assessed and simplified, the details of such initiative by counsel must be specifically indicated – apart, of course, from the need to show if such works have not already been provided for under a different head of costs…”

I have perused the court record and find that indeed the applicant herein filed an objection/reference in court as required under rule 11 (2) of the Advocates (Remuneration) Order seeking an explanation as to why the taxing master had taxed bill of costs as they had. The taxing officer stated that he used the 2006 Advocates Remuneration Order because the case was filed in 2008. That the applicant’s bill of costs was taxed under Schedule 6A (1) (ii) of the Advocates (Remuneration) Order, 2006. I find that the taxing master used the wrong Advocates Remuneration Order as the applicant was instructed in 2010. Some of the relevant factors to take into account when taxing a bill include the nature and importance of the case or matter, the amount or value of the subject matter involved, the interest of the parties, the general conduct of the proceedings and any direction by the trial judge. From the discrepancy mentioned above I find that thethere was an error in principle by the taxing officer in the assessment. Consequently, I find that the application is merited and I grant the following orders;

1. The Taxing Master’s decision of taxed bill of costs dated 18th March 2019 and ruling delivered on 24th July 2019 be and is hereby set aside.

2. The bill of costs dated 18th March 2019 shall be remitted to another Taxing Master for taxation.

3. No order as to costs as this application was undefended.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KAKAMEGA THIS 22ND JUNE 2021.

N.A. MATHEKA

JUDGE