[2022] KEHC 10049 (KLR)

RHMcK & another ((Suing through parents and next friend) NCMcK) v Kenya Motorsport Federation Ltd (Judicial Review Miscellaneous Application E143 of 2021) [2022] KEHC 10049 (KLR) (Judicial Review) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10049 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Miscellaneous Application E143 of 2021

AK Ndung'u, J

July 21, 2022

Between

RHMcK

1st Applicant

JBHMck

2nd Applicant

(Suing through parents and next friend) NCMcK

and

Kenya Motorsport Federation Ltd

Respondent

Ruling

1. This ruling resolves the Chamber Summons application dated 13th October, 2021 in which the RHTMcK and JHMcK (Suing through parents and next friend NCMcK and RMcK (hereinafter, the Applicants) seek orders that:1)The decision of the Taxing Master, the Hon. C. A. Muchoki, taxing the Bill of Costs dated 27th January, 2020 at Ksh. 423,145 contained in the Ruling dated 27th September, 2021 be varied and/or set aside.2)This Honourable Court does order that the Bill of Costs dated 27th January, 2020 be placed before another Taxing Master for taxation.3)This Honourable Court do make any additional orders as the demands of justice dictate.4)The costs of this Application be provide for.

2. The application is premised on 11 grounds particularised on the face thereof, namely:1)The Taxing Master applied the wrong legal principles in taxing items 1 and 2 of the Respondent's Party and Party Bill of Costs dated 27 January 2020, with respect to instruction fees and getting up fees.2)The KES 300,000. 00 awarded by the Taxing Master as instructions fees is inordinately high and against the principles of taxation in judicial review matters as the judicial review proceedings (the JR) the subject of the Bill of Cost was neither set down for hearing nor heard on merits. The JR was dismissed on a technicality during a mention date by a Ruling of the Hon. Justice John Mativo delivered on 19 September 2019. 3)The Applicants have since lodged an appeal against the Ruling of 19 September 2019 at the Court of Appeal, being Civil Appeal No. 100 of 2020 (the Appeal). The Appeal is awaiting directions for hearing before the Court of Appeal.4)The JR was not complex, did not raise a novel question of law, the amount or value of the subject matter was minimal, i.e. quashing of, inter alia, the decision of the Respondent to levy a fine of KES. 10,000 on one of the Applicant minors, and the time expended by the advocate for the Respondent was minimal as the JR was terminated before the substantive motion was set down for hearing on merits.5)There was no justification given by the Taxing Master for increasing instruction fees beyond KES 100,000 as prescribed by the Advocates Remuneration Order (ARO) at schedule 6A paragraph 1 (j) (ii) as there were no extraneous factors to justify an increment of the prescribed basic instruction fees.6)The increment of instruction fees to KES 300,000 in the circumstances went against the principle that costs in litigation must be kept at such level as to ensure that parties can access court and seek justice and amounts to unjust enrichment of the Respondent.7)The Taxing Master erred by allowing item 2 of the Bill of Costs, getting up fees, contrary to the provisions of Schedule 6A paragraph (2) (ii) and (iii) of the ARO as the JR had neither been set down for hearing nor been fixed for trial and was simply dismissed in limine on technical and unjustified points of law. No justification was given by the Taxing Master for allowing this item yet the two cardinal considerations under the ARO were not met.8)The Taxing Master further erred in fact and in law in allowing items 3 & 14 of the Bill of Costs contrary to the provisions of the Advocates Remuneration Order and well-established principle that the party seeking recovery of its costs bears the burden of proving the amount and necessity of its costs.9)Item 3 described as "Drawing of Notice of Appointment of Advocate" was allowed as drawn at KES 1,100 yet the document in question is not a pleading and falls under the category of "any other documents" which are charged at KES 180 per folio as prescribed under Schedule 6A paragraph 4 (d) of the ARO.10)Item 14 described as "Court attendance on 17 September 2019" was taxed at KES 7,100. This amount is prescribed for court attendances that take half a day. The court record shows that the attendance in question was a mention for directions which took less than 30 minutes and ought to have been taxed at KES 1,900 under Schedule 6A paragraph 4 (d) of the ARO.11)The Taxing Master's decision contained in the Ruling dated 27 September 2021 is manifestly wrong both in law and fact.

3. It is further supported by the affidavit of Abbas Esmail, an Advocate of the High Court, sworn on 13th October, 2021.

4. The gist of the application as gleaned from the grounds relied upon, the affidavit in support and leaned submissions by counsel is that the taxing master applied wrong legal principles in taxing instruction fees and getting up fees. It is urged that the instruction fees is inordinately high and against the principles of taxation in judicial review and Constitutional Petitions. It is contended that the instruction fees awarded is not justifiable as the suit was never set down for hearing nor heard on merit. The matter was not complex and did not raise a novel point of law. The Taxing Master is faulted for failing to apply the instruction fees set under schedule 6A paragraph 1(j)(ii) of the Advocates Remuneration Order.

5. As regards the getting up fees, the applicant’s case is that this was not applicable as the suit was never set down for hearing and was dismissed on a technicality. The Respondent did not thus prepare for trial.

6. The Taxing Officer is faulted for allowing items 3 and 14 of the Bill of Costs. She is said to have erred for the following reasons:a)Item 3 in the bill of costs, drawing of Notice of Appointment of Advocate, was allowed as drawn at Ksh. 1,100 yet the document in question is not a pleading and falls under the category of “any other documents” which are charged at Ksh. 180 per folio as prescribed under Schedule 6A paragraph 4(d) of the ARO.b)Item 14 described as “Court attendance on 17th September, 2019” was taxed at Ksh. 7,100. This amount is prescribed for court attendances that take half a day. The court record shows that the attendance in question was a mention for directions which took less than 30 minutes. The Judge’s record of proceedings shows submissions made from the bar which did not even take 10 minutes. The item ought to have been taxed at Ksh. 1,900 under Schedule 6A paragraph 4(d) of the ARO.

7. The application is opposed. Mercy Waliaula, an Advocate of the high Court has sworn an affidavit in which she avers that the amount of Ksh. 300,000 taxed as instruction fees is fair and reasonable based on the circumstances of this case as the matter was complex due to several matters mentioned in the application. The pleadings were voluminous and the history of the matter complex as the applicant (sic) had filed similar suits seeking the same orders.

8. It is urged that the matter was heard and a ruling delivered. Parties prepared for hearing and they appeared in court and made arguments. Getting up fees was thus justified and the Taxing Master exercised discretion reasonably.

9. As regards the amount of Ksh. 1,100 allowed in respect of drawing a Notice of appointment, it is urged that the amount is fair as the document is not provided for under Schedule 6A paragraph 4(a) of the Advocates Remuneration Order.

10. In defence of the Sh. 7,100 allowed for court attendance on 17th September, 2019, Ms. Waliaula depones that the amount is fair as the suit came up before court for directions.

11. I have had occasion to consider the application, the supporting grounds and affidavit a well as the replying affidavit in response. I have had due regard to the learned submissions by counsel including portions of such submissions that I may not directly advert to n my analysis.

12. The issues for determination are:I. whether the Taxing Master applied the correct legal principles in her assessment of the Instruction fees awarded.II. Whether the Respondents were entitled to Getting up fees as awarded by the Taxing Master.III. Whether the award of Ksh 1100 in respect of item 13 and Ksh 7100 in respect of item 14 of the bill of costs was justified.

I. Whether the Taxing Master applied the correct legal principles in her assessment of the Instruction fees awarded. 13. The circumstances under which a Judge of the High Court interferes with the taxing officer’s exercise of discretion are now well known. The court in the case of First American Bank of Kenya vs. Shah and Others [2002] 1 EA 64 set the applicable principles. 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. The position was reiterated in Karen & Associates Advocates vs. Caroline Wangari Njoroge [2019] eKLR, in which the Court cited the decision of the Court in Ochieng, Onyango, Kibet and Ohaga Advocates vs. Adopt Light Ltd. HC Misc 729 of 2006 where the court stated that;“…The taxing master must consider the case and the labour required in the matter, the nature or importance of the matter more so the amount or value of the subject matter involved, the interest of the client in sustaining or losing a brief and the complexity of the dispute. In assessing an amount commensurate to the work undertaken, it is of fundamental importance to consider the value of the subject…”In the same case, it was held that:“The law gives the taxing master some leeway but like all discretions, it must be exercised judicially and in line to the material presented before court.”

14)The nature of the suit to which the subject costs relate was a judicial review application seeking prerogative orders. The fees chargeable thereof are provided for under 6A (1) (j) (ii) of the ARO which provides:“Where the matter is opposed and found to satisfy the criteria set out above, such sum as may be reasonable but not less than 100,000. ’’

15. In her assessment of the instructions fees, the Taxing master expressed herself as follows:“Taking into account the time taken in this matter, scope of the work done and the nature of the dispute herein, I am of the considered view that the (sic) Ksh. 30,0000 is reasonable instruction fees under the circumstances. I proceed to allow item 1 as drawn.’’The Taxing Master was spot on setting out the basic fee before venturing to consider whether to increase it. She eventually proceeded to increase the fees in threefold basing the increase on the sentiments set above. The question that arises is whether in doing so, she correctly exercised discretion applying the correct principles.

16. In Republic vs. Minister for Agriculture & 2 Others ex parte Samuel Muchiri W’njuguna (supra) Ojwang, J (as he then was) 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;3the 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. (emphasis added).

17. It follows then that it is not enough for a Taxing Master to give a general narrative of complexity of a matter, the scope, the level of responsibility, novelty of the matter, time spent, research done or skill deployed. The Taxing Master must employ some degree of specificity. Only then can the exercise of discretion to increase or decrease fees can be said to have been exercised judiciously as per the demands of the law. As held in Republic -vs- Minister for Agriculture & 2 Others Ex-Parte Samuel Muchiri W’njuguna & 6 Others (supra);“… 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………………….it was necessary to specify clearly and candidly how she exercised her discretion… it is not enough to set by attributing to oneself discretion originating from legal provision and thereafter merely cite wonted rubrics under which that discretion may be exercised, as if these by themselves could permit of assignment of mystical figures of taxed costs…complex elements in the proceedings which guide the exercise of the taxing officer’s discretion must be specified cogently and with conviction…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…”

18. Applying the above criteria to our instant suit, it is my considered view that the Taxing Master exercised discretion wrongly in her award of the instruction fee. This Court thus has the necessary legal backing to interfere with the exercise of this discretion. In the circumstances of this case, the award of instruction fees at three times the basic instruction fee allowed under the ARO is so high as to amount to an injustice to the Applicants and was not based on sound legal principles.

II. Whether the Respondents were entitled to Getting up fees as awarded by the Taxing Master 19. The Applicants’ case is that the judicial review application was never set down/fixed for trial and the same was dismissed on a technicality. It is urged therefore that there was no justification for the award of this item. The respondent’s take is that the record shows the matter was heard and a ruling delivered. I t is urged that Arguments were presented before the court. I have perused the short proceedings before the court in Judicial Review Application No. 235 of 2019. Any contention that the matter was heard is an attempt at giving the word hearing a new meaning. The short proceedings reveal that at the ex parte stage, leave to initiate judicial review proceedings was granted. The substantive motion was to be taken out in 21 days. A mention date was set for the 17th September 2019. At the mention, it is apparent that the court’s attention was drawn to the existence of a similar suit being JR No. 260 of 2019. For reasons explained in the Ruling of this court (Mativo J) dated 19th September 2019, both JR NO. 260/19 and 235/19 were dismissed.

20. The ARO provides for a fee for getting up and preparing for trial. In the present case the substantive Notice of Motion did not see light of day as it was dismissed at an early stage before it could be set down for hearing. In the case of Ramesh Naran Patel vs Attorney General[2012] eKLR, the Emukule J stated;“the item in the Advocates Remuneration Order-on getting up fee-contemplates involvement by counsel in the preparation of witnesses, witness statements and determination of the matter by viva voce evidence.”

21. In Nyangito & Company Advocates v Doinyo Lessos Creameries Ltd[2014] eKLR, it was held;“With respect to fees for getting up and preparing for trial under Schedule VI paragraph 2, no fees is chargeable under the said paragraph until the case is confirmed for hearing and in case where the case is not heard, the taxing master must be satisfied that the case has been prepared for trial. It is obvious that the case which gave rise to these proceedings was not heard. There is no evidence that the case was prepared for trial. Accordingly, this paragraph did not apply.’’

22. The relevant proceedings were terminated at a preliminary stage. The suit was not set down for hearing. The ARO is clear and specific on what getting up fee is about. It is ‘’ a fee for getting up and preparing for trial’’. I agree with the decisions in Ramesh Naran Patel vs Attorney General and Nyangito & Company Advocates v Doinyo Lessos Creameries Ltd (supra) and hold that getting up fee is only applicable when the matter has gone through the preliminary stages and is set down for hearing in which case the parties would have naturally expended time and resources in preparing witnesses, exhibits and all that is necessary in getting ready for trial. In our instant suit, this stage of the proceedings was not reached the matter having been dismissed due to legal infractions on the part of the Applicants.

III. Whether the award of Ksh 1100 in respect of item 13 and Ksh 7100 in respect of item 14 of the bill of costs was justified 23. On the award of Ksh 1,100 for the drawing of a notice of appointment, the suitable category of this document is the one provided for in the ARO in reference to drawing of documents as “all other documents’’ for which the prescribed charge is found under Schedule 6A Paragraph 4(d) of the ARO.

24. The taxing Master allowed Ksh. 7,100 for court attendance on the 17th September 2019. This figure is prescribed under the ARO for court attendances taking half a day. The record of court is quite clear. The matter was before court in a mention for directions. The short proceedings show that the mention took a short time, less than 30 minutes. The Taxing officer thus fell into error in applying Schedule 6A paragraph 7(d) of the ARO.

25. From the foregoing, and for reasons above stated, the application herein is successful. I make the following orders:1)The Ruling of the Taxing Master dated 27th September 2021 is hereby set aside.2)The bill of costs dated 27th January 2020 is remitted to a Taxing Master other than Hon C.A. Muchoki for taxation.3)Each Party is to bear its own costs of this Reference.

DATED SIGNED AND DELIVERED AT NAIROBI THIS 21ST DAY OF JULY 2022………………………………………A.K. NDUNGUJUDGE