[2022] KEHC 10510 (KLR)

Three Start Contractors Limited v Judiciary of Kenya (Miscellaneous Application E116 of 2021) [2022] KEHC 10510 (KLR) (Civ) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10510 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Application E116 of 2021

JK Sergon, J

June 17, 2022

Between

Three Start Contractors Limited

Applicant

and

Judiciary of Kenya

Respondent

Ruling

1. The instant application is dated March 10, 2021is seeking for orders that;i.Spentii.Spentiii.The Honorable court be pleased to set aside the decision of the Deputy Registrar Hon. L.A. Mumassaba delivered on February 25, 2021to the extent that it relates to the quantum awarded thereon as well as the reasoning and determination pertaini9ng item one (1) of the Respondent’s Bill of Costs dated October 5, 2018iv.The Honorable court be pleased to re-asses the fees due on the aforesaid item in respect to the Bill of costs dated October 5, 2018 and make a finding on the same.v.In the alternative to prayer 4 above, the Honorable court be pleased to re-tax the aforesaid items of the Bill of Costs dated 5TH October.

2. It is supported by the grounds on the face of it and the depositions in thesupporting affidavit sworn by Rodgers Murunga on 10th of March, 2021.

3. It is stated that the Taxing Officer correctly found that the value of the subject matter could not be discerned from the pleadings but went ahead to award an amount outside reasonable limits without cogent explanation nor proof by the Respondent to warrant such manifestly high costs.

4. It is also stated that the Taxing Officer seems to have used the value of the Public Procurement Administrative Review Board (PPARB) in determining the instruction fees which she increased from Kshs. 25,200/= as provided by schedule 6 (A) (1) of the Advocates Remuneration Order 2014 to Kshs. 3,000,000/= without any justification.

5. It is further contended that the Taxing Officer erred in not considering that the Respondent tabled no duplicate or original material or payment receipts in support of the information in the Bill of Costs nor did the Respondent specify any complex issue to guide the Taxing Officer in her decision.

6. It is the Applicant’s contention that Taxing Officer rightly held that the Appeal revolved around the question of jurisdiction of the Board to determine the Respondent’s request for review and as such no unusual skill was applied as the same was comparable to substantially similar precedence hence the taxing master’s decision was irregular, illegal, manifestly excessive and arrived at injudiciously with the intent of unjustly enriching the Respondent.

7. The Applicant contends that Taxing Officxer did not take into account the interest of parties, general conduct of the proceedings and directions given by the trial judge hence failed to determine the issue of reasonable fees before delving into what was payable to the Respondent. The Applicant insists that the decision of the taxing master is manifestly excessive and the same should be set aside.

8. The Application is opposed. The Respondent filed grounds of opposition dated April 12, 2021and stated that the Application is lacking in merit and plausible ground to warrant the disturbance of the Taxing Master’s discretion. Further that the Taxing Master took into consideration all relevant factors and did not err in principle in arriving at her decision.

9. By consent of parties, this matter was canvassed by way of written submissions which I have read and considered.

10. The decision of a taxing officer is discretionary and this power can only be interfered with if the reference meets the conditions set out in Nyangito & Co. Advocates vs Doinyo Lessos Creameries Ltd [2014] eKLR, where Odunga J laid out the principles as follows:-a.“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 manifested excessive as to justify an inference that it was based on an error of principle;b.It would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors and, according to the Remuneration Order itself. Some of the relevant factors to be taken into account include the nature and importance of the cause or matter, the amount or value of the subject matter involved; the interests of the parties, the general conduct of the proceedings and any direction by the trial Judge;c.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 and the court is not entitled to upset a taxation because in its opinion.”

11. Similarly in Kipkorir, Tito & Kiara Advocates vs Deposit Protection Fund Board [2005] eKLR the Court observed;“On reference to a Judge from the Taxation by the Taxing Officer, the Judge will not normally interfere with the exercise of discretion by the Taxing Officer unless the Taxing Officer, erred in principle in assessing the costs.”

12. The Taxing Officer rightly held that the instructions fees could not be discerned from pleading s and held that the basic fee applicable is governed by schedule 6 (A) (1) ON Appeals. The Taxing Officer went ahead to tax the Party and Party Bill of Costs at Kshs. 3,000,000/= and found that the issue was complex. I have perused the pleadings and do find that the issue at hand was not as complex as the Taxing Officer made it look. There was nothing beyond the ordinary to warrant increase of the instruction fees by that much.

13. The court in Karen & Associates Advocates vs. Caroline Wangari Njoroge [2019] eKLR, in which the Court cited with approval the decision of the Court in Ochieng, Onyango, Kibet and Ohaga Advocates vs. Adopt Light Ltd. HC Misc 729 of 2006 where the it was 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…”

14. I do find that the taxing officer’s discretion to increase the instructions fees to Kshs. 3,000,000/= was reasonable and commensurate to the work done and effort expended by counsel. The same is excessive.

15. I find no merit in the reference. The same is dismissed with each party bearing their own costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF JUNE, 2022. .............................J. K. SERGONJUDGEIn the presence of:........................for the Applicant........................for the Respondent