[2022] KEHC 16909 (KLR)

Tom Ojienda & Associates v County Government of Nairobi (Civil Miscellaneous E223 of 2020) [2022] KEHC 16909 (KLR) (Civ) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16909 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Miscellaneous E223 of 2020

JN Mulwa, J

December 15, 2022

Between

Tom Ojienda & Associates

Applicant

and

County Government of Nairobi

Respondent

Ruling

1. The Advocate – client bill of costs dated July 4, 2020 was taxed by the Taxing officer of the court on the May 27, 2021 in the sum of Kshs1,271,461. 36/-, against a sum of Kshs 52,666,459. 20/- proposed and defended by the applicant’s /Advocates.

2. Being dissatisfied with the award, the Advocates filed the chamber summons application before me, being a Reference pursuant to provisions of paragraph 11 of the Advocates Remuneration order and section 3A of the Civil Procedure Act. It is dated June 9, 2021. The Advocates seek the following orders:1. Spent2. That the findings and ruling of Hon Mumassaba in Misc. Application No. 223 of 2020, with regard to the applicant’s Bill of Costs awarding a sum of Kshs. 1,271,461. 36/- be varied and/or set aside in relation to item number one.3. That the Advocates Bill of Costs dated July 14, 2020 be taxed afresh inter-partes and/or this court proceeds to make a finding.4. That this Honourable Court be pleased to interrogate the Applicant’s Bill of Costs in light of actual work done and adopt the Applicant’s proposal on taxation on costs.5. That costs and further incidentals to this application be provided for; and6. Such further relief as the honourable court may deem just and expedient to grant.

3. The Reference is premised on the grounds stated at the face of the application and supporting affidavit, and a supplementary affidavit sworn by the Advocate, Professor Tom Ojienda, SC on the 9th of june 2021 and June 20, 2022 respectively.The Respondent has not filed any response to the application nor submissions as directed by the Court.

4. I have considered the affidavits in support of the reference and the submissions filed on the May 9, 2022; as well as the reasons for the taxation contained in the ruling by the Taxation Officer dated May 27, 2021.

5. The applicant’s complaint is that the Taxing Officer erred in Principle that led to the Advocates Bill being taxed as low as it failed to commensurate with the value of the subject matter.

6. By the Advocate’s affidavits and submissions, he places a value of Kshs 2,000,000,200/- as the subject value and therefore proposed Kshs 30,200,000/- on the item as instructions fees.The Taxation Officer upon her consideration found a sum of Kshs 650,000/- as sufficient which the Applicant submits is far below the value of the suit land R 9042/667.

7. I have considered the Taxing Officer’s reasons for the award on instructions fee (item number one).The primary suit was a dispute in respect of ownership of the land parcel cited above where some residential units were built; and who were the rightful claimants of rent therefrom between the parties.

8. In her determination, the learned Taxing Officer, Hon. L A Mumassabba found that no valuation report had been filed, hence it was difficult to discern from the pleadings the value of the subject matter.

9. I have noted that the Advocates were instructed in 2011, and therefore the applicable schedule under the Advocates Remuneration Order was schedule VI (5) of the 2006/2009 Order;It provides that:To sue or defend in any case not provided for above such sum as may be reasonable but not less than Kshs 6,300/-.

10. It is trite that the taxing Officer has discretion to increase the above sum upon taking into account: -a.The nature and importance of the cause or matter.b.The amount or value of subject matter.c.The interest of the parties.d.The general conduct of the parties.In the case Joreth LimitedvsKigano &another(2002) E. A. 92, the above principles were stated, and have guided the courts over time.

11. In the case Premchand Raichand Limited & another vs Quarry Services of East Africa Limited &others (1972) E.A 162, and Republic Vs Minister for Agriculture & 2 others Ex-parte Samuel Muchiri W’Njuguna & 6 others (2006) Eklr, the court rendered that in the proceedings which guide the exercise of discretion by the Taxing Officers discretion must be specific cogently and with conviction.

12. The court further held that deployment of considerable amount of time and industry, should too be considered and set out clearly; and recommended consideration of volumes of documentation involved in the proceedings.Additionally, the importance, nature and responsibility placed on the counsel, general conduct of the proceedings, research and skills deployed by the counsel should also be considered – Joreh Limited (Supra).Upon careful perusal and consideration of the proceedings; the court finds that the impugned award was fair, appropriate and just in the circumstances, the taxing officer having expressly acknowledged that the responsibility entrusted in the proceedings was quite difficult and called for nothing but extra diligence including setting aside a decree and consent order of the court that required a keen and vigorous study of the law on the same.

13. I have taken the liberty to interrogate the Taxing Officer’s reasons and rationale for the award to find out if the errors of principle attributed to the learned Taxing Officer are warranted, and to determine if the exercise of discretion was in order or was abused and therefore to guide this court on whether or not to set aside the taxation as urged by the applicant.

14. The matter of the value of the subject matter and valuation reports introduced in the supplementary Affidavit dated October 1, 2007 to the tune of Kshs. 1, 180,000,000/-(One Billion, One Hundred and eighty Million Shillings) was not placed before the Taxing Officer as clearly stated in the ruling dated May 27, 2021. The record does not state otherwise.

15. The court has perused the submissions dated February 4, 2021 filed by the Applicant before the Taxing Officer and specifically on item number one (instructions fees), at paragraph 16 on the value of the subject matter. No mention of the valuation report was made, or referred to at all.Can the valuation report dated October 1, 2007 be introduced at this stage? Why was it not placed before the Taxing Officer at the taxing stage?

16. In the matter of Ochieng, Onyango, Kibet & Ohaga Advocates Vs Adopt a Light Limited (2007) e KLR, the court (Warsame J) rendered that: -….The taxing officer must consider the case and labour required in the matter, the nature or importance of the matter. More so the amount of value of the subject matter involved the interest of the client in sustaining or losing to the work undertaken…. it is fundamental to consider the value of the subject matter. And when the subject matter is unknown, the court is empowered to make what is available as a point of reference…. (emphasis added)

17. There having been no valuation report placed before the Taxing Officer at the time the taxation was undertaken, the Taxing Officer had no other option but to use the pleadings before the court, and having considered all the relevant parameters to arrive at a fair and consummate instructions fees, and in exercise her discretion, found the sum of Kshs 1,271,461. 36/- to be fair and reasonable.

18. The court notes that the instant Application for setting aside and variation of the impugned award upwards is now pegged on the Valuation Report dated 1st October 2007 stated above.Just like in all proceedings before a court of law, new documents and evidence cannot be introduced at the appellate stage after judgment has been delivered, or on appeal without leave having been sought and granted by the court. Admission of such evidence would without leave of court, without a doubt, deny the opposing party a chance to interrogate the same.

19. The Court of Appeal in the case Otieno, Ragot & Company Advocates Vs National Bank of Kenya Limited (2020) e KLR pronounced itself in a very similar dispute that a reference is an appeal from the Taxing Officer’s decision; and that new evidence and/or documents may only be introduced upon leave being granted by the court. Additionally, the court rendered that admission of documents in taxation proceedings is a preserve of the Taxing Officer under rule 13A of the Advocates Remuneration Order, and on reference the Judge only deals with what was on record at the time of the taxation. See also Moses Wekesa Vs Paul Otieno Nyamodi T/A V.A. Nyamwali & Company Advocates(2021) e KLR.

20. Coming to the Taxing Officers’ discretion in the taxation of the Advocate – Client Bill of Costs, the court has no mandate to interfere with the decision on taxation unless it is shown that either the decision was based on an error of principle or the amount awarded is manifestly excessive as to justify an inference that it was based on an error of principle – Kipkorir, Tito and Kiara Advocates Vs Deposit Protection Fund Board (2005) e KLR – wherein the court rendered itself as above.

21. Lastly, the approach taken in determining the appropriate instruction fees for purposes of taxation is ably stated in the decisions cited above. In the courts considered opinion and persuasion, there is no doubt that the Taxing Officer was guided appropriately to arrive at the sum of Kshs 1,271,461. 36/-.

22. For the foregoing, the court finds no plausible reasons nor persuasion to warrant interference with the Taxing Officer’s award of costs on item one (instructions fees) of the Bill of Costs dated 4th July 2020. It is upheld.Consequently, the Reference by the chamber summons application dated June 9, 2021 is hereby dismissed with no orders as to costs.Orders accordingly.

DATED, DELIVERED AND SIGNED IN THIS 15TH DAY OF DECEMBER, 2022. J. N. MULWAJUDGE