[2018] KEHC 684 (KLR)
The court found that the applicant had properly exhibited evidence of the stamp duty disbursement through documents filed as a supplementary list, even though they were not attached to the original bill of costs. The taxing officer's decision to disallow the stamp duty item was therefore erroneous. The court...
Source-derived case information.
- Citation
- [2018] KEHC 684 (KLR)
- Parties
- Applicant: Sherman Nyongesa & Mutubia Advocates; Respondent: Pacis Insurance Company Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 40 of 2017
- Procedural Posture
- Miscellaneous Application / Reference Against Taxing Officer's Decision on Bill of Costs
- Outcome
- Reference allowed; taxing officer's decision set aside and substituted with revised sum.
- Judges
- CA Otieno
- Legal Topics
- Taxation of Costs, Advocate Remuneration, Disbursements, Bill of Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sherman Nyongesa & Mutubia Advocates
Applicant
Pacis Insurance Company Limited
Respondent
Procedural Posture
Miscellaneous Application / Reference Against Taxing Officer's Decision on Bill of Costs
Legal Issues
- 1 Whether the taxing officer erred in disallowing the stamp duty disbursement for lack of receipts.
- 2 Whether supplementary documents filed after the bill of costs can be relied upon to prove disbursements.
- 3 Whether the sum for stamp duty should be allowed and the taxed amount adjusted accordingly.
Ratio Decidendi
The court found that the applicant had properly exhibited evidence of the stamp duty disbursement through documents filed as a supplementary list, even though they were not attached to the original bill of costs. The taxing officer's decision to disallow the stamp duty item was therefore erroneous. The court substituted the disallowed sum with the proven amount of Kshs.22,220/=, resulting in a revised total of Kshs.137,053.32 due to the applicant. The court also clarified the correct procedure for claiming fees for attending taxation, emphasizing that such fees should not be included in the bill but left for the taxing officer to determine.
Court Disposition
Reference allowed; taxing officer's decision set aside and substituted with revised sum.
Orders
- The taxing officer's decision disallowing the stamp duty disbursement is set aside.
- The sum of Kshs.22,220/= for stamp duty is allowed in place of the disallowed amount.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
MISC. CIVIL APPLICATION NO. 40 OF 2017
SHERMAN NYONGESA & MUTUBIA ADVOCATES.........APPLICANT
VERSUS
PACIS INSURANCE COMPANY LIMITED.......................RESPONDENT
R U L I N G
1. There is before court a reference by the advocate against the decision of the taxing officer by which a bill of costs dated 17/2/2017 was on the 14/12/2017 taxed in the sum of Kshs.114,833. 20. In that bill there was an item no. 2, being stamp duty in the sum of Kshs.25,918/= which was disallowed and taxed off in whole for reasons that no receipts were presented and exhibited to court.
2. It is that item that is the subject of the reference by which the Advocate/Applicant contends that the taxing officer erred in disallowing the sum being a disbursement for which receipts were duly presented by the supplementary list of document dated 20/7/2017 and filed in court on the 21/7/2017.
3. The application was evidently served, acknowledged and an Affidavit of Service filed but there was never any response filed to it. Even submissions ordered were only filed by the applicant and not the respondent/client. The Applicant was therefore wholly unopposed and could as well pass as such but this court is minded to find out if the taxing officer committed any error in the process and task of taxing the bill.
4. Under paragraph 69 of the Advocate Renumeration Order disbursement are decreed to be shown at the foot of the bill of costs.
5. Here the disbursements were duly claimed as the Rules dictate and documents in support thereof being KRA Pay in Slip No. 2020170001 dated 6/7/2017, Kenya Commercial Bank Customer Transaction Slip TT 171877 R3PW dated 6/7/2017 and Department of Land Revenue receipt no. 4640378 dated 18/7/2017 showing that the stamp duty was indeed paid, were filed in a document headed “supplementary list of documents”.
6. Strictly speaking the documents evidencing sums incurred on disbursements should be attached to the bill but that by itself is not fatal provided the same are exhibited. Here I do find that there was evidence of the disbursement by way of stamp duty paid on the lease registration and that the taxing officer awarded the payment of registration in the sum of Kshs.500/= on the basis of a document filed together with payment for stamp duty, which he disallowed, is a clear error on the part of the taxing officer.
7. I do upset the taxing officers decision taxing off that sum and in its place substitute an order allowing the same in the sum of Kshs.22,220/= and not Kshs.25,918/= as claimed. When that sum is added to the sum allowed of Kshs.114,833. 32, the sum due to the Advocate/applicant under that bill comes the sum of Kshs.137,053. 32. I therefore set aside the sum taxed and in its place substitute a sum of Kshs.137,053. 32. Let a certificate of costs be issued in that sum.
8. There is a common mistake committed by advocates when drawing bill of costs and it regards fees to attending before the Deputy Registrar for taxation. For good reason, the Remuneration Order provides that no sum shall be claimed under this item. The rationale is to this court the fact that the taxation may necessitate more than one attendance and therefore it would restricting and inaccurate to claim the sum beforehand. It is left blank so that the taxing officer award a befitting sum depending on the number of attendances and time taken in urging the bill. Paragraph 69(3) of the Remuneration Order, provides:-
“Fees for attending taxation shall not be included in the body of the bill, but the item shall appear at the end, and the amount left blank for completion by the taxing officer”.
9. This observation is made with the hope that a practitioner who may read this ruling will be guided how to make a fair claim for attendance to tax a bill of costs.
10. Lastly, this being an application after taxation, and being on a file for taxation, in which no further bill is anticipated nor desirable, I award the costs of the reference assessed in the sum of Kshs.5,000/= all-inclusive, to the Advocate applicant.
11. It is so ordered.
Dated and delivered at Mombasa on this 18th day of December 2018.
P.J.O. OTIENO
JUDGE