[2017] KEHC 1874 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

MILIMANI LAW COURTS AT NAIROBI

JUDICIAL REVIEW DIVISION

MISCELLANEOUS CIVIL APPLICATION NO. 360 OF 2014

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS UNDER SECTIONS 8 & 9 OF THE LAW REFORM ACT CAP 26 LAWS OF KENYA AND ORDER 53 OF THE CIVIL PROCEDURE RULES, 2010

AND

IN THE MATTER OF AN APPLICATION BY UKWALA SUPERMARKET LIMITED & TUSKER MATTRESSES LIMITED FOR JUDICIAL REVIEW ORDERS OF CERTIORARI, PROHIBITION AND MANDAMUS

AND

IN THE MATTER OF THE REFUSAL OF THE COMPETITION AUTHORITY OF KENYA TO ALLOW OR UNCONDITIONALLY ALLOW THE PROPOSED ACQUISITION & SALE OF THE BUSINESS AND ASSETS OF 6 BRANCHES OF UKWALA SUPERMARKET LIMITED BY TUSKER MATTRESSES LIMITED

AND

IN THE MATTER OF THE COMPETITION ACT NO 12 OF 2010, LAWS OF KENYA & ARTICLES 27, 35, 40, 47, 48, 50, 258, 259 AND 260 OF THE CONSTITUTION OF KENYA

BETWEEN

THE REPUBLIC……………………......................…………APPLICANT

VERSUS

THE COMPETITION AUTHORITY…...............................RESPONDENT

EX-PARTE:

UKWALA SUPERMARKET LIMITED

TUSKER MATTRESSES LIMITED

RULING

Introduction

1. This ruling is the subject of two applications. By a Chamber Summons dated 28th September, 2017, the ex parte applicants herein seek the following orders:

1) Thisapplication herein be certified as urgent and be heard ex-parte in the first instance;

2) That this Honourable Court be pleased to grant an Order of stay of execution as purportedly presented vide Warrants of Attachment of Movable property in execution of decree for money issued and dated the 20th of September 2017 and any other consequential orders pending the hearing and determination of this Application;

3) Thatthis Honourable Court be pleased to Order the stay of execution as purportedly presented vide Warrants of Attachment of Movable property in execution of decree for money issued and dated 20th of September 2017 as purportedly presented and any other consequential Orders of pending the hearing and determination of the Ex-parte Applicants’ Chamber Summons dated 16th June 2017;

4) Thatthe Honourable Court be pleased to set aside the Warrants of Attachment of Movable property in execution of decree for money issued and dated 20th of September 2017, to Moran Auctioneers and the subsequent proclamation of attachment of 25th of September 2017; and

5) That theCosts of this application be provided for.

2. The application dated 16th June, 2017 on the other hand is a reference from the decision of the Taxing Officer on taxation. The same substantially seeks that this Court sets aside the Taxing Officer’s decision and ruling delivered on 5th June, 201, as it relates to the reasoning and determination pertaining to items 1, 6, 11, 12 and 21 of the Respondent’s Bill of Costs dated 22nd September, 2016. It further seeks that the Court be pleased to adjust the figure, re-assess the fees due in the Respondent’ Bill of Costs dated 22nd September, 2016 and or issue further/necessary orders as it may deem fit. Accordingly it is sought that the costs of the application be provided for.

3. It is clear that depending on the determination of the application dated 16th June, 2017, the determination of the application dated 28th September, 2017 may be rendered unnecessary.

4. In the premises I intend to deal with the former application first

Applicants’ Case

5. According to the applicants, on 5th of June 2017, the taxing officer delivered a ruling on a Bill of costs filed by the Respondent herein dated 22nd September 2016, whereby she taxed the Instruction fees at Kshs. 1,000,000. 00 and further taxed off disputed items number 6, 11, 12 and 21 (Mentions before this Court) at Kshs.3,000. 00.

6. According to the applicants, the applicable law in determining what should be the instruction fees in Judicial Review matters is found in the Advocates Remuneration Order 2014, Schedule 6(1)(J) -Constitutional and Prerogative Orders. According to them, the provision provides that in matters not complex and opposed the instructions fees should be Kshs. 45,000. 00 and in matters complex and opposed it should be Kshs. 100,000. 00.

7. It was contended that since at no time did the taxing officer state in her entire ruling that the matter before her was of a complex nature, the correct basic fee is Kshs. 45,000. 00. not as stated in her ruling that the basic fee was Kshs. 100,000. 00. From thereon she should have exercised her discretion to reduce and or increase the basic fee but with reasons. It was contended that even if the Taxing Officer determine that the basic fee was Kshs. 100,000. 00 she would have had to justify why she increased the instruction fees tenfold yet the matter was not of a complex nature nor was there any novelty as was evidenced before her by the list of authorities parties intended to rely upon were all from the High Court of Kenya.

8. It was submitted that the taxing officer never gave a single reason for her decision but only stated that she was exercising her discretion to increase the instruction fees tenfold. To the applicants the increase should have been 2 or 3 times and not tenfold as was ordered.

9. It was reiterated that the matter was not at all complex as it was determined before parties could be heard and secondly, case law relied upon by the Respondent/Applicant, does not exhibit any complexity as they are all decisions of the High Court of Kenya.

10. As regards items 6, 11, 12 and 21 of the Bill of costs dated 22nd September 2016, it was submitted that Schedule 6(7) of the Advocates Remuneration Order 2014 provide for attendances and provides for attendances less than 30 minutes as Kshs. 1,100. 00 but the taxing officer taxed the items at Kshs. 3,000. 00 despite the fact that the items related to mentions before this Court, which never go past an hour unless in exceptional circumstances, yet no such exceptional circumstances were shown by the taxing officer or by the Respondent. It was therefore prayed that this Court interferes with the decision of the taxing officer and reduces it to the correct amount of Kshs. 1,100. 00.

11. With respect to whether the Taxing Officer misdirected herself on the discretion and awarded a fee that is manifestly too high as to justify interference and whether this Court can interfere, it was submitted that this Court for justice sake has to interfere based on this Court’s decision in National Oil Corporation Limited vs. Real Energy Limited & Another [2016] eKLRwhere the Court had this to say about a claim that never proceeded for hearing:

“Having considered the material before me, I cannot find any justification whatsoever in the increase of the basic instructions fees 40 times in an application that did not go past the leave stage. In absence of material upon which the learned Taxing Officer exercised her discretion, this Court must interfere with the said exercise of discretion.”

12. The applicants therefore prayed that this Court interferes and/or sets aside the ruling and order of the taxing officer if found that in reaching her decision the taxing officer relied upon the wrong section therefore wrongly stating the basic fee; for failing to give reasons as to why she increased the basic fee tenfold; and for failing give reasons as to why the matter was considered complex and or of novelty so as to base the instruction fees at Kshs. 100,000. 00 instead of Kshs. 45,000. 00.

Respondent’s Case

13. The application was opposed by the Respondent.

14. According to the Respondent, parties herein vide a Letter of Consent dated 15th June, 2015 and filed on 2nd September, 2015 agreed to compromise this matter. The consent was adopted as an Order of the Court on 13th September, 2016 and a Decree reflecting the terms of the Consent issued on 19th September, 2016 (hereinafter the “Decree”). As per Clause 3 of the Consent, the Ex-parte Applicants were liable to pay the Respondent’s Advocates costs of the suit.

15. Following the delivery of the said Ruling, the costs were assessed at Kshs. 1,042,880. 00. Although the Ex parte Applicants thereafter filed the Application dated 16th June, 2017 on 21st June, 2017 in challenge thereof, the prayer for stay of the Ruling pending hearing and determination of this application was not granted and the Respondent’s advocates proceeded to instruct Moran Auctioneers to execute the Decree. It was averred that on or about 25th September, 2017 the Auctioneers extracted Warrants of Attachment of movable goods and proclaimed the movable property of the 1st Ex-parte Applicant. As a result, on 27th September, 2017 and following the warrants, the 2nd Ex parte Applicant issued two cheques in full payment and satisfaction of the costs as per the Decree.

16. Despite the full payment of the due amount, the Ex parte-Applicants on even date proceeded to file the Notice of Motion Application dated 28th September, 2017 challenging, inter alia, the Warrants of Attachment.

17. According to the Respondent, the Taxing Officer applied the correct minimum particularly under rule 1(j)(ii) which applies in this case and which provides that “where the matter is opposed and found to satisfy the criteria set out above, such sum as may reasonable but not less than Kshs. 100,000”. It was the Respondent’s position that the first threshold here is satisfied as the Ex Parte Applicants’ matter has been opposed. With regards to the second threshold, the determination as to the complexity and importance of this case is at the discretion of the Taxing Officer.

18. It was the Respondent’s submission that this matter indeed raised complex issues which demanded tremendous effort from the Respondent’s advocates in terms of research and labour. In this respect the Respondent relied on page 17 of the judgment in Republic vs. Minister for Agriculture & 2 others Ex-parte Samuel Muchiri W’Njuguna & 6 Others [2006] eKLR .

19. To the Respondent, this matter was complex for the following reasons:

(a) It involved a forensic examination by the advocates of the Respondent of its regulatory and enforcement mechanisms vis a vis the 2nd Ex-parte Applicant’s market dominance in the retail sector. An exercise of this nature and scale into a largely unexplored area of law and the outcome of the same has not been subject to determination before this Honourable Court before;

(b) The documentation subject to the analysis of the Respondent’s advocates was voluminous and detailed, requiring special care and attention;

(c) It involved the balance between the private interests of the Ex parte Applicants and the public consequences of the same which would affect numerous employees in the retail industry and ultimately have significant implications on the economy.

(d) The responsibility weighing on the Respondent’s advocates was beyond ordinary and called for the exercise of an extremely high level of diligence and scrutiny beyond that which is normally expected ;

(e) The level of engagement between the parties and the proceedings thereof were novel, thereby justifying the special allowance in costs by the Taxing Officer;

(f) The research was time-consuming involving skill engaging activities which consequently justify an enhanced award.

20. Furthermore, it was contended, the importance of the case cannot be understated as:

(a) It is the first case where a major limited liability company with a large market share in the retail sector has challenged the Respondent’s exercise of its statutory powers to control market dominance; and

(b) The employment of 575 employees was at stake;

21. Therefore the Respondent was apprehensive that not only did the Taxing Officer properly consider the facts of the Respondent’s case before her and thereafter exercise discretion in determining that this matter was complex and important, but the same was done judicially in accordance with the law.

22. Further and in any event, this application ought to be dismissed for the reason that all the orders sought are now spent and otherwise have been overtaken by events, such that:

(a) the order for stay in terms of order no. 2 was not granted; and

(b) the orders sought in terms of orders no. 3 and 4 respectively cannot be granted as the Ex-parte Applicants have on record fully satisfied the payment of the costs as examined above in paragraph 7 of these Submissions.

Determinations

23. I have considered the foregoing and this is the view I form of the matter.

24. The first issue is whether by settling the taxed costs the Respondent is estopped from contesting the decision of the Taxing Officer on taxation. A not too dissimilar issue arose before the Court of Appeal in Machakos District Co-Operative Ltd. vs. Nzuki Kiilu Civil Application No. Nai 17 of 1997 where it was argued that since the decretal sum had been paid, the right of appeal had been lost. The Court (Shah, JA) however had no hesitation in holding that the fact that the decretal sum has been paid does not deprive a party of the right of appeal. It is similarly my view that the mere fact that a party, in order to avoid the consequences of execution settles the taxed costs does not bar him from challenging the same by way of a reference since the mere payment thereof does not without more amounting to the party foregoing his right to challenge the taxation.

25. The circumstances under which a Judge of the High Court interferes with the taxing officer’s exercise of discretion are now well known. These principles are, (1) that 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; (2) it would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors and, according to the Order itself, some of the relevant factors to be taken into account include the nature and the importance of the cause 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; (3) if the Court considers that the decision of the Taxing Officer discloses errors of principle, the normal practise 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 and the Court is not entitled to upset a taxation because in its opinion, the amount awarded was high; (4) it is within the discretion of the Taxing Officer to increase or reduce the instruction fees and the amount of the increase or reduction is discretionary; (5) the Taxing Officer must set out the basic fee before venturing to consider whether to increase or reduce it; (6) the full instruction fees to defend a suit are earned the moment a defence has been filed and the subsequent progress of the matter is irrelevant to that item of fees; (7) the mere fact that the defendant does research before filing a defence and then puts a defence informed of such research is not necessarily indicative of the complexity of the matter as it may well be indicative of the advocate’s unfamiliarity with basic principles of law and such unfamiliarity should not be turned into an advantage against the adversary. These principles were stated in the case of First American Bank of Kenya vs. Shah and Others [2002] 1 EA 64.

26. Further it has been held that the Court should interfere with the decision of the Taxing Officer where there has been an error in principle but should not do so in questions solely of quantum as that is an area where the Taxing Officer is more experienced and therefore more apt to the job; the court will intervene only in exceptional cases and multiplication factors should not be considered when assessing costs by the Taxing Officer or even the Judge on appeal; the costs should not be allowed to rise to such level as to confine access to court to the wealthy; a successful litigant ought to be fairly reimbursed for the costs he had to incur in the case; the general level of remuneration of Advocates must be such as to attract recruits to the profession; so far as practicable there should be consistency in the awards made; every case must be decided on its own merit and in every variable degree, the value of the suit property may be taken into account; the instructions fees ought to take into account the amount of work done by the advocate, and where relevant, the subject matter of the suit as well as the prevailing economic conditions; one must envisage a hypothetical counsel capable of conducting the particular case effectively but unable or unwilling to insist on the particular high fee sometimes demanded by counsel of pre-eminent reputation; then one must know that what fee this hypothetical character would be content to take on the brief; clearly it is important that advocates should be well motivated but it is also in the public interest that cost be kept to a reasonable level so that justice is not put beyond the reach of poor litigants.

27. Further guidance if necessary may be obtained in the case of Joreth Limited vs. Kigano & Associates [2002] 1 EA 92 at 99 where the Court of Appeal held that the value of the subject matter for the purposes of taxation of a bill of costs ought to be determined from the pleadings, judgement or settlement (if such be the case) but if the same is not so 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 matter, the interest of the parties, the general conduct of the proceedings, any direction by the trial judge and all other relevant circumstances. It is however not really in the province of a Judge to re-tax the bill and if the Judge comes to the conclusion that the taxing officer has erred in principle he should refer the bill back for taxation by the same or another taxing officer with appropriate directions on how it should be done. The Judge ought not to interfere with the assessment of costs by the Taxing Officer unless the officer has misdirected himself on a matter of principle. In principle the instruction fee is an independent and static item, is charged once only and is not affected or determined by the stage the suit has reached. The Taxing Officer whilst taxing his bill of costs is carrying out his functions as such only. He is an officer of the Superior court appointed to tax bills of costs.

28. In Republic -vs- Minister for Agriculture & 2 Others Ex-Parte Samuel Muchiri W’njuguna & 6 Others [2006] eKLR Ojwang, J (as he then was) expressed himself inter aliaas 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…”

29. While remitting the matter for fresh taxation the learned Judge in the above matter gave the following guidelines:

1. the proceedings in question were purely public-law proceedings and are to be considered entirely free of any private-business arrangements or earnings of the tea production sector;

2. the taxation of advocates’ instruction fees is to seek no more and no less than reasonable compensation for professional work done;

3. the taxation of advocates’ instruction fees should avoid any prospect of unjust enrichment, for any particular party or parties;

4. so far as apposite, comparability should be applied in the assessment of advocate’s instruction fees;

5. objectivity is to be sought, when applying loose-textures criteria in the taxation of costs;

6. where complexity of proceedings is a relevant factor, firstly, the specific elements of the same are to be judged on the basis of the express or implied recognition and mode of treatment by the trial judge;

7. where responsibility borne by advocates is taken into account, its nature is to be specified;

8. where novelty is taken into account, its nature is to be clarified;

9. where account is taken of time spent, research done, skill deployed by counsel, the pertinent details are to be set out in summarised form.

30. In the case of Paul Ssemogerere & Olum vs. Attorney General- Civil Application No.5 of 2001 [unreported] the Court held:

“In our view, there is no formula by which to calculate the instruction fee. The exerciseis an intricate balancing act whereby the taxing officer has to mentally weigh the diverse general principles applicable, which sometimes, are against one another in order to arrive at the reasonable fee. Thus while the taxing officer has to keep in mind that the successful party must be reimbursed expenses reasonably incurred due to the litigation, and that advocates, remuneration should be at such level as to attract recruits into the legal profession, he has to balance that with his duty to the public not to allow costs to be so hiked that courts would remain accessible to only the wealthy. Also while the taxing officer is to maintain consistency in the level of costs, it is settled that he has to make allowance for the fall, if any, in the value of money. It is because of consideration for this intricate balancing exercise that taxing officer's opinion on what is the reasonable fee, is not to be interfered with lightly. There has to be a compelling reason to justify such interference.”

31. In her decision, it is clear that the Taxing Officer was alive to the factors that ought to be taken into account in taxing the bill in question. She for example addressed herself to the correct legal provision with respect to the instructions fees. As the proper schedule was set out in the decision, the Taxing Officer cannot therefore be accused of having served out the costs without a specific statement of the authorising clause in the law in this case Schedule 6 paragraph 1(j)(ii). What then does that clause provide? The provision provides that in matters not complex and opposed the instructions fees should be Kshs. 45,000. 00 and in matters complex and opposed it should be Kshs. 100,000. 00. In this case, it is clear from the record that the application was opposed and in fact submissions had been filed by the Respondent. Since the law is clear that instruction fee is an independent and static item charged once only and is not affected or determined by the stage the suit has reached, I cannot fault the Taxing Officer for applying Kshs 100,000. 00 as the minimum fees though she did not expressly state why she relied on the same figure and not Kshs 45,000. 00.

32. In this case, the Taxing Officer found that the basic instructions fees payable was Kshs 100,000. 00. As was held in First American Bank of Kenya vs. Shah and Others [2002] 1 EA 64, the Taxing Officer must set out the basic fee before venturing to consider whether to increase or reduce it. As I have stated above, the taxing officer did set out the basic fee and was aware of the principles guiding taxation of costs. She proceeded to award the applicant Kshs 1,000,000. 00 in respect of instructions fees. In Opa Pharmacy Ltd vs. Howse & Mcgeorge Ltd Kampala HCMA No. 13 of 1970 (HCU) [1972] EA 233, it was held:

“Whereas the taxing officer is given discretion of taking into account other fees and allowances to an advocate in respect of the work to which instructions fees apply, the nature and importance of the case, the amount involved, the interest of the parties, general conduct of the proceedings and all other relevant circumstances and taking any of these into consideration, may therefore increase the instruction fees, the taxing officer, in this case gave no reason whatsoever for doubling the instruction fee. Had the taxing officer given his reasons at least there would be known the reason for the inflation. As it is he has denied the appellant a reason for his choice of the figure, with the result that it is impossible to say what was in the taxing officer’s mind. The failure to give any reason for the choice, surely, must, therefore, amount to an arbitrary determination of the figure and is not a judicial exercise of one’s discretion.”

33. The principles guiding taxation were similarly reiterated by the Court of Appeal of Uganda in Makula International vs. Cardinal Nsubuga & Another [1982] HCB 11 where the Court pronounced itself as follows:

“The taxing officer should, in taxing a bill, first find the appropriate scale fee in schedule VI, and then consider whether the basic fee should be increased or reduced. He must give reasons for deciding that the basic fee should be increased or decreased. When he has decided that the scale should be exceeded, he does not arrive at a figure which he awards by multiplying the scale fee by a multiplication factor, but places what he considers a fair value upon the work or responsibility involved. Lastly, he taxes the instruction fee, either by awarding the basic fee or by increasing or decreasing it.”

34. I however emphasize that the Taxing Officer ought to disclose what informed the decision to tax the costs in one way as opposed to another. I therefore agree with the decision in Republic -vs- Minister for Agriculture & 2 Others Ex-Parte Samuel Muchiri W’njuguna & 6 Others (2006) eKLR that:

“… It is necessary to ascertain how she arrived at that figure; for although the judicial review applicant’s firm position is that it was an exercise of lawful discretion which therefore, this court should uphold, the correct perception of the discretion donated by law, I believe, is that such a discretion is only duly exercised when it is guided by transparent, regular, reliable and just criteria…”

35. Therefore as was stated in the above case:

“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…”

36. Since these are the consideration that the Taxing Officer must take into consideration, the decision must show what considerations were in fact taken into account. In other words it is not enough for the Taxing Officer to simply set out the factors to be considered but must go further and disclose what if any factors were considered in arriving at the decision to increase or decrease the minimum fees. Such considered factors must appear on the face of the record otherwise the decision may well be construed to have been arbitrarily arrived at.

37. This Court in Republic vs. Public Procurement and Administrative Review Board & 2 Others Ex-Parte Sanitam Services (EA) Limited [2015] eKLR expressed itself as hereunder:

“...Private law claims do not fall in the same class as public law claims such as those in judicial review, in constitutional application, in public electoral matters. Such matters are in a class of their own and the instruction fees allowable in respect of them should not, in principle be extrapolated from the practices obtaining in the private law domain which may involve business claims and profit calculations…In this case the basic instructions fees payable was Kshs 28,000. 00. As was held in First American Bank of Kenya vs. Shah & Others Nairobi (Milimani) (supra), the Taxing Officer must set out the basic fee before venturing to consider whether to increase or reduce it. The taxing officer however did set out the basis fee. She however did not say why in her view the basis fee had to be increased from Kshs 28,000. 00 to Kshs 200,000. 00 which was 7 times the basic fees…The principles guiding taxation were similarly reiterated by the Court of Appeal of Uganda in Makula International v. Cardinal Nsubuga & Another [1982] HCB 11 where the Court pronounced itself as follows: “The taxing officer should, in taxing a bill, first find the appropriate scale fee in schedule VI, and then consider whether the basic fee should be increased or reduced. He must give reasons for deciding that the basic fee should be increased or decreased. When he has decided that the scale should be exceeded, he does not arrive at a figure which he awards by multiplying the scale fee by a multiplication factor, but places what he considers a fair value upon the work or responsibility involved. Lastly, he taxes the instruction fee, either by awarding the basic fee or by increasing or decreasing it.”

38. It was further held that:

“In Danson Mutuku Muema vs. Julius Muthoka Muema & Others Machakos High Court Civil Appeal No. 6 of 1991 which was cited in Republic vs. Ministry of Agriculture & 2 others Ex parte Muchiri W’njuguna & 6 Others (supra) Mwera, J (as he then was) held that whereas the Court was entirely right to give the costs within its discretion, the amount allowed being ten times the sum provided for, the Court did not think the said sum was reasonable and found that it was definitely excessive as opposed to three or four times. The Court further found that since the Taxing Officer was bound to give reasons for exercising his discretion and as none were given in his ruling save to say that he simply exercised his discretion, it was just and fair to set aside the sum he allowed.”

39. In this case after setting out the relevant factors, and without applying the same to the matter before her, the Taxation Officer proceeded to impose a figure of Kshs 1,000,000. 00 as instructions fees.

40. In Danson Mutuku Muema vs. Julius Muthoka Muema & Others Machakos High Court Civil Appeal No. 6 of 1991 which was cited in Republic vs. Ministry of Agriculture & 2 others Ex parte Muchiri W’njuguna & 6 Others (supra) Mwera, J (as he then was) held that whereas the Court was entirely right to give the costs within its discretion, the amount allowed being ten times the sum provided for, the Court did not think the said sum was reasonable and found that it was definitely excessive as opposed to three or four times. The Court further found that since the Taxing Officer was bound to give reasons for exercising his discretion and as none were given in his ruling save to say that he simply exercised his discretion, it was just and fair to set aside the sum he allowed.

41. This Court is aware that in Butt & Another vs. Sifuna T/A Sifuna & Company Advocates Civil Appeal No. 45 of 2005 [2009] KLR 427, the Court of Appeal while appreciating that the basic instructions fees was Kshs 9,000. 00 in a winding up petition nevertheless awarded Kshs 150,000. 00 in respect of instructions fees which was 17 times the basic instructions fees.

42. In Kenya Union of Commercial Food & Allied Workers (K) vs. Banking Insurance & Finance Union (K) Civil Appeal No. 60 of 1988, instructions fees was taxed downwards from Kshs 1,000,000. 00 to Kshs 150,000. 00 where leave to apply for judicial review proceedings was disallowed.

43. It is therefore clear that whereas in terms of quantum an award of Kshs 1,000,000. 00 does not necessarily amount to wrong principle, where however there is no explanation for ten times increase in the minimum fees provided, such an increase in my view may be construed as amounting to an error of principle.

44. However in this case, whereas this Court must express its dissatisfaction with the fact that the learned Taxing Officer did not indicate the factors which led her to award 10 times the basic instructions fees, the matters herein were novel in that they involved a forensic examination, by the advocates of the Respondent, of its regulatory and enforcement mechanisms vis a vis the 2nd Ex-parte Applicant’s market dominance in the retail sector. An exercise of this nature and scale into a largely unexplored area of law and the outcome of the same had not been subject to determination before this Court before. I therefore agree that, considering the foregoing decisions, there was some complexity and importance in the matter that required responsibility to be borne by advocates hence necessitating that a considerable amount of time be spent, research done and skill deployed by counsel.

45. With respect to the items 6, 11, 12 and 21 I am not satisfied that I ought to interfere with the awards even if the Court itself would have awarded a different figures. I am not satisfied that the decisions were based on an error of principle, or the fee awarded were manifestly excessive or low as to justify interference.

Order

46. In the result I find no merit in this reference.

47. Having dismissed the application dated 16th June, 2017, it is nolonger necessary to deal with the application dated 28th September, 2017 considering that the taxed costs have since been paid.

48. In the premises there will be no order as to costs.

Dated at Nairobi this 6th day of December, 2017

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Ochieng for the Applicant

Mr Mungai for the Respondent

CA Ooko