[2018] KEHC 5401 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

JUDICIAL REVIEW APPLICATION NO. 12 OF 2016

BETWEEN

THE REGISTRAR, ACADEMIC AFFAIRS DEDAN KIMATHI UNIVERSITY

OF TECHNOLOGY.................................................APPLICANT/RESPONDENT

AND

ISACK ABDRAHMAN HUSSEIN............................RESPONDENT/EXPARTE

REPUBLIC.........................................................................................APPLICANT

RULING

The application before me is the Chamber summons dated 4th November 2017 brought under rule 11 of the Advocates Remuneration Order and supported by the affidavit of Charles Wahome Gikonyo Advocate.

It seeks orders that the Taxing Master’s order of 10th March 2017 on the bill of costs dated 16th December 2016 be set aside and the bill of costs be taxed afresh.

The main ground for the application is that the said bill was not taxed in accordance with the Advocates’ Remuneration Order 2014, Schedule 6, especially paragraph 1 (b) and other applicable paragraphs.

The application is supported by the affidavit sworn by Charles Wahome Gikonyo Advocate on the 5th of May 2017, to which is annexed the Ruling of the taxing master delivered on the 10th March 2017, and the bill of costs.

The application is opposed vide the grounds of opposition filed by Anyoka & Associates, Advocates dated on the 27th February 2018 to the effect that the taxing master abided by the provisions of the ARO and that the application is frivolous, vexatious, and an abuse of the process of the honourable court.

In his oral submissions, the applicant submitted that

1. The taxing master’s reference to the ARO 2006 was erroneous as the JR was filed in 2016

2. The award of Ksh 100, 000 for instruction fees as against what was sought, Ksh 300,000 was also erroneous as the reason given was that the applicant had not justified the same. He submitted that the JR was for the prayers of certiorari, mandamus. It was opposed. The same was determined by a 13 typed page judgement. It could not just attract the bare minimum of costs. The prayer was for an award of the Ksh 300,000.

3. That in calculating the additional amount allowed, the 1/3 is the bare minimum, and taking into account the nature of the application, the applicant deserved more than the bare minimum.

4. That for items 20-25 on the bill of costs, the applicant had sought Ksh 3000, and 7100 respectively but was awarded Ksh 1100 without any reasons

5. That on items 10, 16 and 37 on service, service was in Nairobi, and they ought to have been awarded for 7500 each.

6. That the bill of costs ought to have been taxed at Ksh 475,102.

Ms. Wanjira holding brief for Mr. Anyoka for the respondent submitted that the respondent had filed submissions on 8 /2/2017 before the taxing master and was relying on the same.

1. That the applicant had not established that the matter before the court was complex, raised novel issues of law. Hence Ksh 100, 000 was sufficient

2. That the matter was determined through written submissions, hence the Ksh 33, 333 was justified as additional 1/3 was sufficient.

3. That on attendance, all the attendances were for less than one hour hence the Ksh 1100 was sufficient as the scale is between ksh1100 and Ksh 1900

4. On service items 10, 16 and 37, service was by courier and ought to be taxed at 1400

In response the applicant argued that the matter was of great importance as it involved the education and exams of a student. That the respondent had filed written submissions attaching several authorities. There was research required and time expended by advocate

With regard to attendance, it was not possible that they appeared only for 30 minutes as that would only happen if you were 1st on the cause list.

I have perused the ruling of the taxing master and the bill of costs. I have considered the submissions by each counsel.

The issues are; which Advocates’ Remuneration orders applicable, whether the bill was taxed according to the correct ARO and whether this court ought to disturb the findings of the taxing master.

The applicable ARO is 2014 schedule 6. The taxing master’s mention of ARO 2006 appears to have been an error on the face of the record.

The arguments were with regard to the awards for instruction fees, service and attendances.

Regarding the INSTRUCTION FEES, paragraph j(ii) provides

where the matter is opposed and found to satisfy the criteria set out above, such sum as may reasonable but not less than 100,000.

The criteria referred to is set out at j as follows:

(j) Constitutional petitions and prerogative orders

To present or oppose an application for a Constitutional and Prerogative Orders such fee as the taxing master in the exercise of his discretion and taking into consideration the nature and importance of the petition or application, the complexity of the matter and the difficulty or novelty of the question raised, the amount or value of the subject matter, the time expended by the advocate—

The applicant asked for Ksh 300,000 but was granted Ksh 100,000- the minimum. It was upon the applicant to establish the complexity of the matter, the difficulty of novelty of the question raise and the amount or value of the subject matter. It has been submitted that the matter was weighty because it involved the education of the applicant in the JR, that the complexity was demonstrated by the submissions filed by the applicant, the no of authorities cited, which required the applicant to expend time to respond thereto and the length of the Judge’s Ruling.

I have perused the court file. Parties filed written submissions. There was no highlighting of the same, and the Judge appears to have written the ruling from the written submissions. It appears to me that the amount of work that went into the JR was the minimum in the circumstances.

On ATTENDANCES, I have perused the record and considered generally what happens at mentions before the Judge.

On 26th July 2016 counsel entered into a consent – the amount is reviewable to 1900.

On 30th August 2016 they took directions – I review the amount to 1900

On 5th October 2016 and on 31st October 2016 it was to merely confirm filing of submissions- Ksh 1100 is sufficient for each item. On 7th November the matter was mentioned for ruling and adjourned, Ksh 1100 is sufficient. On 24th November 2016 the Ruling was delivered. Considering Counsel could have been in court for an hour I review the award to Ksh 3000.

With regard to SERVICE paragraph 9 states

(a) within three kilometers of the High Court or district registry of the High Court Ksh 1,400

(b) Every additional kilometer over three, such amount as is reasonable, not Ksh 35 exceeding per kilometer.

I did not see an affidavit of service for the notice of appointment, the respondent’s replying affidavit and submissions to confirm that they were served in Nairobi. It is he who alleges who must prove. The applicants want costs for service in Nairobi, the applicant must establish that service was effected in Nairobi.

There is an affidavit of service for the hearing notice for the bill of costs effected on the respondent effected in Nairobi on 11th January 2018.

According to Google maps it is 151 km from Nyeri to Nairobi @ Ksh 35 it comes Ksh 5285, add Ksh 1400 it comes to Ksh 6685.

The additional costs are total Ksh 8785.

Hence the reviewed bill will be Ksh 175,920.

Dated, delivered and signed at Nyeri this 21st May 2018

Mumbua T. Matheka

Judge

In the presence of:

C/A Atelu

Ms. Wanjira holding brief for Anyoka for respondent

Mr. Wahome for applicant