[2023] KEHC 25223 (KLR)

P Sang & Co Advocates v University Academic Staff Union Multimedia University of Kenya (Civil Miscellaneous Application E287 of 2021) [2023] KEHC 25223 (KLR) (Civ) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25223 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Miscellaneous Application E287 of 2021

AN Ongeri, J

November 10, 2023

Between

P Sang & Co Advocates

Advocate

and

University Academic Staff Union Multimedia University Of Kenya

Respondent

Ruling

1. The application coming for consideration is the reference dated 15/12/2022 seeking the following prayers;1. That the decision of the taxing master in the Advocate and Client Bill of Costs dated 21st June, 2021 in Miscellaneous application no. E287 of 2021 made on 30th November, 2022 be reviewed in terms of items nos. 2, 3, 4, 14, 15, 26, 27, 28, 29, 30, 36, 37, 41, 42, 43, 4, 51, 54, 55, 56 and 57 and 8, 9, 10, 13, 18, 19, 20, 21, 24, 31, 32, 33, 34, 35, 45, 46,47,48, 49, 59, 63, 67, 68, 69, 70, 71, 72 and 73 of the said Bill of Costs.2. That the certificates of taxation herein be set aside and the bills be taxed by a different taxing master.3. That the cost of this application be provided for.

2. The contested items are listed in 1 above.

3. The reference is based on the following grounds:i.That the Bill of Costs was taxed on 30th November 2022, the applicant applied for reasons for taxation on 1st December 2022, which reasons and ruling were made available to the applicant on 5th December 2022. ii.That the taxing master wrongly made a finding that the instruction fees that is item number 1 in Misc. Application No. E287 of 2021 is kshs.600,000/= without justifiable cause yet the same was strenuously contested in the respondent/applicant’s written submissions.iii.That the taxing master failed to take into account the submissions dated 7th December, 2021 as filed on 9th December, 2021 by the respondent in Misc. Application no. E287 of 2021 arising from HCC No. E103 of 2020. iv.That the instruction fees being taxed at kshs.600,000/= is erroneous as it is not in accordance with Schedule 6B of the Advocates Remuneration Order, 2014 and that the applicable fee should have been kshs.75,000/=.v.That in her decision, the taxing master relied upon the provisions of Schedule 6(ii) on “other matters if defended” of the Advocates Remuneration (Amendment) (No. 2) Order 2014 and further confirmed that the instruction fees for the instant suit is kshs.75,000/=if defended. This is well articulated at page 3, paragraph 3 of the said decision of 30th November, 2022. vi.That the taxing master confirms that the scale fees for this suit is kshs.75,000/= but proceeds to award kshs.600,000/= without any explanation and/or justification. That the taxing master does not issue reasonable and/or necessary factors to satisfy the award of kshs.600,000/=.vii.That the taxing master in exercise of the discretion vested in her, ought to wholly rely on the provisions of the Law pursuant to the said decision.viii.That evidently, the taxing master quotes the correct provision of schedule 6 (ii) of the Advocates Remuneration Order (Amendment) (No. 2) (2014) and confirms kshs.75,000/= as the instruction fees but erroneously awards kshs.600,000/= without justifiable cause.ix.That the taxing master’s wrong interpretation and misapplication of the Law applicable to item number 1 on instruction fees was irrational, punitive and without any legal foundation and further that this reference has been brought expeditiously and made in the interest of justice.x.That the taxing master failed to take into account public interest that the funds to be expended herein are public funds.xi.That the respondent/applicant do seek further, for the retaxation of items number 2, 3, 4, 14, 15, 26, 27, 28, 29, 30, 36, 37, 41, 42, 43, 44, 51, 54, 55, 56 and 57 of the said Bill of Costs and the same to be taxed off further.xii.That the respondent/applicant do seek further, for the retaxation of items number 5, 8, 9, 10, 13, 18, 19, 20, 21, 24, 31, 32, 33, 34, 35, 45, 46, 47, 48, 49, 59, 63, 67, 68, 69, 71, 72 and 73 of the said Bill of Costs and the same be taxed off further in relation to the submissions dated 7th December, 2021. xiii.That the bills of costs have been taxed astronomically high and puts the provisions of legal services out of reach and defeats the purpose of taxation which is to compensate a winning party for the expenses incurred in the case.xiv.That its only just and fair that the ruling in taxation be set aside and the matter be remitted to a new taxing master for taxation in strict compliance and in accordance with the applicable legal principles guiding taxation of bills of costs.xv.That the taxing master erred in law in globally allowing all the other contested items in the bill and in taxing off unjustified amounts without any justification yet the items were not drawn to scale.xvi.That the taxing master taxed the Bill of Costs in a manner not in accordance with the Principles of Public Finance Management Act and the Constitution in protection of public funds against such exorbitant fees.

4. The advocate filed a replying affidavit as follows; It is deponed that vide Notice of Motion Application dated 7th September 2020, the Advocate/Respondent filed a suit against the Respondent/Applicant in Milimani HCC No. 103 of 2020 under Certificate of Urgency seeking injunctive orders to restrain the Defendants themselves, their servants and agents from transferring pension scheme funds, stay of appointment of the 3rd defendant as the new investment manager and 1st Defendant to urgently convene an Annual General Meeting of the members of Multimedia University Pension Scheme.

5. He averred that the advocate filed a bill of costs dated 21st June 2021 seeking instruction fees of Kshs. 23,920,000. The respondent opposed the said bill of costs by filing its submissions dated 7th December 2021. The taxing master thereafter awarded the applicant a total of Kshs. 1,251,351. 70.

6. He deponed that the applicant has not shown how the decision of the taxing master in awarding instruction fees Kshs. 600,000 is inconsistent with Schedule 6 (ii) of the Advocates Remuneration Order 2014. That the applicant has not provided reasons for re-taxation of other items stipulated in their chamber summons dated 15th December 2023. That merely stating that the items are contested does not warrant for the re-taxation of other items without sufficient explanation.

7. The parties filed written submissions as follows; the applicant submitted that the general principles governing interference with the exercise of the taxing master's discretion were authoritatively stated by the South African Court in Visser v Gubb 1981 (3) SA 753 (C) 75411 — 755C as quoted in KANU National Elections Board & 2 others v Salah Yakub Farah [2018] eKLR and reiterated in Ocean Commodities Inc and Others v Standard Bank of SA Ltd and Others 1984 (3) SA 15 (A) at 18F C G as follows:-“The Court will not interfere with the exercise of such discretion unless it appears that the taxing master has not exercised his discretion judicially and has exercised it improperly, for example, by disregarding factors which he should properly have considered, or considering matters which it was improper for him to have considered; or he had failed to bring his mind to bear on the question in issue; or he has acted on a wrong principle. The court will also interfere where it is of the opinion that the taxing master was clearly wrong but will only do so if it is in the same position as, or a better position than, the taxing master to determine the point in issue . . . The court must be of the view that the taxing master was clearly wrong, i.e. its conviction on a review that he was wrong must be considerably more pronounced than would have sufficed had there been an ordinary right of appeal."

8. The applicant submitted that the bill of costs has been taxed astronomically high. That the Taxing Master, at page 3 paragraph 3 of her decision dated 30th November 2022, relied upon the provisions of Schedule 6 (ii) on "other matters if defended" of the Advocates Remuneration (Amendment) (No. 2) Order 2014 and confirmed that the instruction fees for the instant suit is Kshs. 75,000 if defended but proceeded to award Kshs. 600,000 without any explanation and/or justification.

9. The respondent on the other hand submitted that the Respondent/Applicant has not shown how the decision of the taxing master in awarding item 1 Kshs. 600,000 is inconsistent with Schedule 6 (ii) of the Advocates Remuneration order 2014 which provides that; to sue or defend in any case not provided for above; such sum as may be reasonable but not less than, if defended Kshs. 75,000. This provision only provides the minimum amount to be awarded but does not bind the taxing officer to the minimum amount provided.

10. The respondent submitted that the Advocates Remuneration Order allows the taxing officer to exercise his/her discretion to ensure that an advocate is adequately compensated for the professional work done. Section 16 of the Advocates (Remuneration) Order 2009 provides for the discretion of the taxing officer as follows:“Notwithstanding anything contained in this Order on even taxation the taxing officer may allow all such costs, charges and expenses as authorized in this Order as appear to him to have been necessary or proper for the attainment of justice of for defending the rights of any party, but, save as against the party who incurred the same, no costs shall be allowed which appear to the taxing officer to have been incurred or increased through over-caution, negligence or mistake, or by payment of special charges or expenses to witnesses or other person, or by other unusual expenses."

11. The Taxing Master exercised her discretion judiciously in awarding Item 1 Kshs. 600,000 as the matter was complex involving pension scheme funds of the registered trustees. The subject matter as seen from the pleadings was complex procurement questions, management of trusts and pension schemes. Handling the matter was time consuming involving researching, drafting of pleadings and attendances in court. Perusal of documents from the client as well as pleadings from the Defendants and the court was time consuming as the documents were voluminous which included tender documents, internal rules (constitution) and correspondences between members of Multimedia University Pension Scheme and the trustees among others.

12. The sole issue for determination is whether the bill is taxed to scale.

13. I find that the taxing master in arriving at her decision to award Kshs. 600,000 as instruction fees correctly applied the principles that a taxing master must consider in exercising her own discretion as enunciated in a landmark decision of Joreth Limited v Kigano & Associates (2002) EA 92 where it was held:“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 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.”

14. I have considered the objection. I have also perused the contested items.

15. I find that the contested items are taxed to scale and I find no reason to interfere with bill of costs.

16. I find that the reference lacks in merit. I dismiss it with costs to the advocate.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 10TH DAY OF NOVEMBER, 2023. ...................................................A. N. ONGERIJUDGE