[2024] KEHC 4487 (KLR)

United Millers Limited & 3 others v Inspector General Police & 3 others (Petition 10 of 2020) [2024] KEHC 4487 (KLR) (5 April 2024) (Ruling)

Neutral citation: [2024] KEHC 4487 (KLR)

Republic of Kenya

In the High Court at Kisumu

Petition 10 of 2020

RE Aburili, J

April 5, 2024

Between

United Millers Limited

1st Petitioner

Sunil Narshi Shah

2nd Petitioner

Kamal Narshi Punja Shah

3rd Petitioner

Mangesh Kumar Verma

4th Petitioner

and

The Inspector General Police

1st Respondent

The Directorate of Criminal Investigations

2nd Respondent

The Director Of Public Prosecution

3rd Respondent

BN Kotecha & Sons Limited

4th Respondent

Ruling

Introduction 1. This ruling determines the Reference filed by the 4th respondent brought by way of chamber summons dated 26. 8.2022 to challenge taxation of the 4th respondent’s bill of costs dated 25. 3.2022 vide a ruling rendered on the 18. 8.2022 awarding the 4th respondent a sum of Kshs. 305,560. The applicant who is the 4th respondent seeks the following orders:i.Spentii.That the findings and ruling of the Honourable Lina Akoth in Kisumu High Court Petition No. 10 of 2020, taxation, with regards to the 4th Defendant’s Bill of Costs, awarding a sum of Kshs. 305,560 be varied and/or set aside in relation to items Nos. 1, 20, 36 and 44. iii.That this Honourable Court be pleased to order that the Bill of Costs be re-taxed afresh after considering the applicant’s submissions on the Bill by any other taxing officer.iv.That this Honourable Court be pleased to interrogate the 4th respondent’s Party and Party Bill of Costs in light of the actual work done and adopt the applicant’s proposal on the taxation of costs.v.That this Honourable Court be pleased to adjust the contested items as the justice of the case may require, in lieu of remitting the contested items to a taxing officer.vi.That this Honourable Court be pleased to order that costs of this application as well as in the contested Bill of Costs be borne by the Respondent/Petitioners.vii.That this Honourable Court be pleased to make any such order and or orders as it may deem just and appropriate in the circumstances.

2. The application is based on the grounds therein and the annexed affidavit of Harshil Kishore Kotecha. It is the applicant’s case that the taxing master erred in the application of the law in taxing the Bill at the low amount of Kshs. 303,560. The applicant further averred that the taxation of Item 1 to the lowest basic minimum fees of Kshs. 100,000 was in disregard of the time and effort put into the success of the case, complexity and nature and of the case and value of the subject matter.

3. The applicant further lamented that the taxing master ignored and denied it fees for getting up or preparing for trial which would have been allowed in addition to the instructions fee.

4. The applicant further claimed that items 12, 14,17, 21, 30, 33 and 37 were taxed off despite the fact that in some case it would be impossible to provide receipts in support thereof as the expense was incurred as the pleadings were sent from Nairobi to Kisumu.

5. It was the applicant’s case that the taxing master erred in law and fact by taxing items 18,26 and 35 on the lower scale without any justifiable reasons and cause whereas and further that the taxing master erred in law in failing to tax part of the Bill of Costs under Schedule 6 (A) (2) of the Advocates Remuneration Order.

6. The applicant stated that it had filed submissions but there is no copy of the same in the E-filing system. The court shall therefore consider the Reference based on the detailed grounds and supporting affidavit

7. I did not find any opposing affidavit to the Reference and therefore I shall proceed to determine the merits thereof.

Analysis & Determination 8. I have considered the reference herein and it is my view that the issue for determination is whether the decision of the taxing officer should be set aside/taxed afresh based on the grounds outlined herein by the applicant. I will thus proceed to consider the disputed items.

9. On item 1, the instruction fees, the applicant pleaded asking a sum of Kshs. 15,000,000 but the taxing officer awarded Kshs. 100,000 guided by the provisions of paragraph 1 (j) of Schedule 6 of the Advocates Remuneration Order. Paragraph 1(j) of the said Schedule provides as follows as regards instruction fees in constitutional petitions and prerogative orders:“To present or oppose an application for a Constitutional and Prerogative Orders such fee as the taxing master in the exercise of his discretion and taking into consideration the nature and importance of the petition or application, the complexity of the matter and the difficulty or novelty of the question raised, the amount or value of the subject matter, the time expended by the advocate—(i)where the matter is not complex or opposed such sum as may be reasonable but not less than 45,000(ii)where the matter is opposed and found to satisfy the criteria set out above, such sum as may reasonable but not less than100,000(iii)to present or oppose application for setting aside arbitral award- 50,000. ”

10. The applicable principles as regards setting aside or varying a taxation of a bill of costs are that a Court cannot interfere with the taxing officer’s decision on taxation, unless it is shown that the decision was based on error of principle, or the fee awarded was manifestly excessive as to justify interference. These legal parameters were laid down in First American Bank of Kenya v Shah and Others [2002] 1 E.A. 64 at 69 by Ringera J. (as he then was) who delivered himself thus;“First, I find that on the authorities, this 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 so manifestly excessive as to justify an inference that it was based on an error of principle.”

11. These principles reiterate the position of the Court of Appeal in Joreth Ltd v Kigano & Associates (2002) 1 EA 92, where the Court held that a taxing master in assessing costs to be paid to an advocate in a bill of costs was exercising her judicial discretion, and that such judicial discretion can only be interfered with when it is established that the discretion was exercised capriciously and in abuse of proper application of the correct principles of law, or where the amount of fees awarded by the taxing master is excessive to amount to an error in principle.

12. Specifically, as regards the taxing of instruction fees, the following guidelines were provided by Ojwang J. (as he then was) in Republic v Ministry of Agriculture & 2 Others Ex parte Muchiri W’Njuguna & 6 Others, (2006) eKLR:“1. 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;

3. the 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.”

13. The above guidelines were also applied by Odunga J. (as he was then) in Nyangito & Co Advocates v Doinyo Lessos Creameries Ltd, [2014] eKLR, and the learned Judge in addition also held that the taxing officer must first recognize the basic instructions fee payable before venturing to consider whether to reduce or increase it.

14. I have perused the ruling by the Taxing Officer dated 18th August 2022, and note that she applied Schedule 6A1(j) of the Advocates Remuneration Order, and noted that the basic instruction fee was Kshs 100,000.

15. I therefore find that the decision of the taxing master in awarding instruction fees of Kshs. 100,000 was not based on any error of principle, neither were the said fees as awarded excessive or inordinately low as to justify interference by this Court.

16. As regards the taxation of getting up fees, I note that the applicant did not plead the same in its Bill of Costs and thus the taxing master did not have the opportunity to consider the same. I shall similarly not regard the same as this would consist entertaining a new matter introduced on a reference, which matter was neither pleaded nor canvassed before the taxing master during taxation.

17. On items 12,14,17,21,30,33 and 37, the applicant contended that the same should have been awarded despite the lack of receipts as the said expenses would have ordinarily been incurred in the course of sending the pleadings from Nairobi to Kisumu Law Courts and where the opposing counsel was located.

18. In resolving the issue raised above, I shall seek guidance in the decision in Ngatia & Associates Advocates v Interactive Gaming & Lotteries Limited [2017] eKLR, where the court held that disbursements must be proved by way of receipts. See also the case of AM Kimani & Co. Advocates vs. Trident Insurance Company Limited [2016] eKLR.

19. In Maina Murage & Company Advocates v Mae Properties Limited [2018] eKLR, the court declined a claim for disbursements on the basis that that the applicant did not provide receipts to prove the said disbursements and the number of folios in the photocopying had not been specifically stated.

20. On the basis of the above authorities, it is my finding that it was incumbent upon the applicant to prove the disbursements he claimed. There was no evidence by way of receipts as to how he came to the same, and I hold that the taxing officer cannot be faulted for taxing off Items 12, 14, 17, 21, 30, 33 and 37.

21. Regarding Items 18, 26 and 35 which were attendances, the applicant claimed that the taxing master erred by taxing them on a lower scale whereas they waited in the lobby for more than an hour as other court proceedings were ongoing.

22. Paragraph 7 of Schedule 6 of the Advocates Remuneration Order provides for costs of Kshs. 3,000 on the Higher Scale for court attendances of one hour. Clearly, there is no evidence that the applicant attended court for a whole day and as such, I find no reason to interfere with the taxing master’s award.

23. Taking all the above into consideration, I find that the chamber summons dated 26. 8.2022 lack merit and I proceed to dismiss the same with no orders as to costs, the respondents having filed no responses thereto.

24. I so order and direct that save for the already taxed costs settlement, this file is now closed. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 5THDAY OF APRIL, 2024R.E. ABURILIJUDGE