[2006] KEHC 756 (KLR)
The court found that there were no unique or complex issues in the case to justify an instruction fee above the statutory minimum. The litigation was a straightforward claim for recovery of money paid in anticipation of marriage, and the application before the lower court was a simple application to strike out the...
Source-derived case information.
- Citation
- [2006] KEHC 756 (KLR)
- Parties
- Appellant: Peter Wambugu Kariuki; Respondent: Justus Weru Ngaruchi; Respondent: Marion Wanjira Weru; Respondent: Emily Wangui Weru
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 513 of 1999
- Procedural Posture
- Civil Appeal / Reference From Taxing Officer's Decision on Bill of Costs
- Outcome
- Application succeeds in part; instruction fee reduced to statutory minimum; each party to bear its own costs.
- Judges
- ARM Visram
- Legal Topics
- Taxation of Costs, Instruction Fees, Discretion of Taxing Officer
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Wambugu Kariuki
Appellant
Justus Weru Ngaruchi
Respondent
Marion Wanjira Weru
Respondent
Emily Wangui Weru
Respondent
Procedural Posture
Civil Appeal / Reference From Taxing Officer's Decision on Bill of Costs
Legal Issues
- 1 Whether the Taxing Officer erred in principle in awarding instruction fees above the statutory minimum.
- 2 Whether there were unique issues justifying a higher instruction fee than the minimum prescribed.
- 3 Whether the court should interfere with the Taxing Officer's discretion in taxation of costs.
Ratio Decidendi
The court found that there were no unique or complex issues in the case to justify an instruction fee above the statutory minimum. The litigation was a straightforward claim for recovery of money paid in anticipation of marriage, and the application before the lower court was a simple application to strike out the defence. The Taxing Officer's award of Kshs.50,000/= for instruction fees was therefore unjustified and amounted to an error in principle. The court exercised its power to interfere with the Taxing Officer's discretion and substituted the award with the minimum prescribed fee of Kshs.35,000/=.
Court Disposition
Application succeeds in part; instruction fee reduced to statutory minimum; each party to bear its own costs.
Orders
- The award of Kshs.50,000/= for instruction fees is set aside and substituted with an award of Kshs.35,000/=.
- Each party shall bear its own costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 513 of 1999
PETER WAMBUGU KARIUKI ………….......……….……… APPELLANT
VERSUS
JUSTUS WERU NGARUCHI ………….…………… 1ST RESPONDENT
MARION WANJIRA WERU …………..…....……….. 2ND RESPONDENT
EMILY WANGUI WERU ……………….…....………. 3RD RESPONDENT
RULING
This is a reference to this Court from a decision of the Taxing Officer on the Respondent’s bill of costs which was taxed at Kshs.78,695/=. The main item of contention is the instruction fees which was taxed at Kshs.50,000/=. There are also several small items in dispute.
The litigation in the lower court arose out of a marriage that failed to take place, and for recovery of certain funds paid in anticipation of marriage. The Appellant’s application to strike out the defence was disallowed by the lower court. He appealed against that decision to the High Court, and the same was disallowed, resulting in the taxation of the Respondent’s bill of costs.
The item for instruction fees was charged at Kshs.105,000/=, which the Taxing Officer conceded was on the high side. He reduced it to Kshs.50,000/= although the minimum provided for in the Advocates (Remuneration) Amendment Order, 1997 Schedule VI, is Kshs.35. 000/=. His reasons for allowing a much higher sum of Kshs.50,000/= was that “this matter involved unique issues on traditional (customary) marriages raising issues of customary law and English common law”. The Applicant has argued before me that there was nothing unique here, and the instruction fee of Kshs.50,000/= was too high. He relied on the cases of First American Bank of Kenya vs Gulab P. Shah (HCCC No. 2255 of 2000, Milimani), and Wambugu & Company vs Savings & Loan Kenya Limited (HC Misc. C A 464 of 2004, Milimani).
Having reviewed the pleadings, I agree with the Applicant. There is nothing unique in this case. There are no issues of traditional marriages or customary law that needed to be considered. Indeed the marriage never took place. This was a straight forward claim for recovery of moneys paid in anticipation of marriage. And the application before the lower court, which gave rise to this appeal, was also an equally straight forward application to strike out the defence. I cannot see any justification to award a fee higher than the minimum prescribed.
I am well aware of the discretion given to the Taxing Officer in taxation matters, and that this court should only interfere with that discretion if there was an error in principle, or if the sum arrived at was either so high or so low as to imply that the taxing officer applied the wrong principles. I am satisfied that such is the case here, and accordingly I hereby set aside the award of Kshs.50,000/= for instruction fees, and substitute the same with an award of Kshs.35,000/=.
With regard to the other small items, I do not see the need to interfere with the taxing officer’s discretion. There is no serious error of principle.
Accordingly, as this application succeeds only in part, I order that each party bears its own costs.
Dated and delivered at Nairobi this 22nd day of November, 2006.
ALNASHIR VISRAM
JUDGE