[2023] KEHC 25490 (KLR)

Shikuku t/a Eshikhoni Auctioneers v West Kenya Sugar Co Ltd (Miscellaneous Civil Application E055 of 2022) [2023] KEHC 25490 (KLR) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25490 (KLR)

Republic of Kenya

In the High Court at Bungoma

Miscellaneous Civil Application E055 of 2022

DK Kemei, J

November 17, 2023

Between

Kennedy Shikuku T/A Eshikhoni Auctioneers

Appellant

and

West Kenya Sugar Co Ltd

Respondent

Ruling

1. Vide chamber of summons application dated 21st June, 2022, the appellant seeks the following reliefs;a.The honourable judge be pleased to set aside the assessment and award of the taxing master concerning items a, c, d, e, f, g, j and k of the appellants’ bill of costs dated 5/12/2019. b.The Honourable Judge do re-assess items a, c, d, e, f, g, j and k of the appellant’s bill of costs dated 5/12/2019. c.The Honourable judge do issue a certificate of costs as per the re-assessed costs.d.The Honourable Judge do enter judgement in favour of the appellant in terms of the certificate issued.e.The respondent bears the costs of this appeal.f.Any other order the court may deem fit and expedient.

2. The appellant’s gravamen is inter alia; that the learned taxing master erred in law and fact in failing to appreciate the law that covers taxation of the auctioneer’s bill of costs and further by being sympathetic to the respondent; that the learned taxing officer erred by taxing the appellant’s bill upon receipt of warrants at Kshs 1,000/- instead of Kshs 2,000/-; that the fee payable on inventory ought to be Kshs 20,000/- instead of Kshs 2,000/- awarded by the taxing officer.

3. The appellant also deposes that the taxing officer erred by awarding Kshs 20,000/- on commission when the commission is to be calculated as per the value of the property which was Kshs 23,000,000/-. That the award of Kshs 25,480/- on travel expenses was erroneous as the sum awardable under the item is Kshs 35,136/- as provided by law.

4. The appellant also faults the award of Kshs 4,400/- on VAT as the same ought to be calculated at 16% of the auctioneer’s commission. He also faults the refusal by the taxing officer to award him fees on advocate’s representation of Kshs 10,000/- when he was represented by counsel. On the award for process server, the appellant faults the award of Kshs 4,550/- instead of Kshs 6,000/-

5. The appellant thus faults the taxing officer for failing to consider the bill in accordance with the law.

6. Despite service, the respondent did not file any response to the application. The court further directed the disposal of the application by way of written submissions. The appellant duly complied. The same have been considered.

Analysis and determination. 7. This being an appeal against a finding by the taxing officer, the guiding principles are that the court cannot interfere with the discretion of the taxing officer unless it can be clearly shown that the taxing officer erred in principle. The same was stated in First American Bank of Kenya v Shah & others ( Nairobi Milimani) HC civil case No 2255 of 2000 where the court held that:-“The court cannot interfere with the taxing master’s decision on taxation unless it is known that either the decision was based on error of principle or the fee awarded was manifestly excessive as to justify an interference that it was based on an error of principles”.“………….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”.

8. The items under contest relate to item (a) which is the fee upon receipt of warrants. Looking at the taxing officer’s reasons, this item was allowed as prayed. The appellant had sought for Kshs 2,000/-

9. Item (c) is fees on taking inventory. The appellant had sought Kshs 20,000/- while the taxing officer awarded Kshs 2,000 as per the provisions of Paragraph 10 of the 4th Schedule.

10. The schedule provides that the auctioneer shall be paid such amount as the court may consider reasonable. Having earlier stated that this is an exercise of discretion by the taxing officer, i have no reason to interfere with this award.

11. Item (d) is on the auctioneer’s fees on attachment/commission which is 2% of the value of the proclaimed property. The appellant sought for Kshs 460,000. The taxing master while awarding Kshs 20,000/- noted that he could not have awarded the same had it not been for the concession by counsel in the sum of Kshs 20,000/-. The taxing master noted that the auctioneers use this figure to inflate their commission.

12. In this case, the value of the attached property was Kshs 23,000,000/-. I have noted that the decretal sum was Kshs 127,105/-. I am aware that the correct yardstick for calculating this figure is on the value of the attached and or proclaimed goods. In this case, despite the decretal sum being way below what the appellant attached, I am of the view that awarding Kshs 460,000/- would unjustifiably enrich the appellant to the detriment of the respondent. The decretal sums of Kshs 127, 105/ is way off the amount the Appellant was demanding. Had the respondent paid the sums demanded even at execution stage, then it is highly unlikely that the Appellant would seek to reap more that what the debt entailed. This is the unjust enrichment the taxing master was alluding to. I find the taxing master’s reasons for awarding the sum of Kshs 20,000/- plausible and hereby decline the invitation to interfere with the award.

13. Item No (e) was travelling expenses. Under the schedule, the amount at three times the amounts published by the Automobile Association. The taxing officer awarded Kshs 25, 480/-. I find this amount erroneous and substitute this with the figure of Kshs 35, 136/- as claimed by the Appellant.

14. Item (f) was 16% VAT on the commission. The appellant faults the taxing officer for basing this figure on the instructions fee instead of commission. The auctioneer in his bill of costs had sought for VAT on the commission. Having awarded commission at 20,000/- I find the sum awardable under this head is Kshs 3,200/-

15. Item (g) and (j) is court fees on filing bill of costs and advocate’s instructions fees respectively. Having considered the 4th schedule, these fees are not provided for and therefore not recoverable. The taxing officer cannot be faulted.

16. Item (k) is on process servers’ fees on service of bill of costs, notice of taxation and submissions on debtor’s advocates in Kakamega.

17. Having regard to the nature of the fees sought, it is n noted that such fees are not contemplated by the 4th Schedule. However, the same ought to fall under paragraph 4 of the 4th Schedule covering disbursements. The taxing officer’s award of Kshs 4,550/- in my view is reasonable.

18. In light of the above, the reference partially succeeds to the extent discussed in the preceding paragraphs. Each party to bear their own costs.

DATED, DELIVERED AND SIGNED AT BUNGOMA THIS 17THDAY OF NOVEMBER ,2023D.KEMEIJUDGEIn the presence of :Sabwan for AppellantMalie Jackson for RespondentKizito Court Assistant