Ally Yahaya Simba v Abdulaziz Mohamed Abood

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT MOROGORO CIVIL REFERENCE NO. 000016403 OF 2026 ALLY YAHAYA SIMBA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS ABDULAZIZ MOHAMED ABOOD .............................. RESPONDENT / DEFENDANT RULING MAGOIGA, J The applicant, ALLY YAHAYA SIMBA being dissatisfied with the decision of the Taxing Officer dated 04/06/2026 in which the respondent was awarded Tshs.24,210,000/= in respect of the bill of costs has preferred this reference against the said decision by way of a Chamber Summons supported by the affidavit of Henry Lazaro Chaula, learned Advocate, made under Rule 7(1) and (2) of the Advocates Remuneration Order, 2015, seeking the following prayers: — 1. That, this Honorouble Judge be pleased to examine the Ruling and Order of the Taxing Master/Officer in Taxation Cause No.968 of 2026 delivered on 16th June 2026, for the purpose of satisfying itself as to the correctness, legality Page. 1 and propriety of the said Ruling and Order based on the settled law and principles government the taxation costs. 2. This, Court be pleased to disallow, or in the alternative, drastically reduce the amount awarded under Item 1 of the Bill of Costs, as the same is extremely excessive on the ground that the underlying matter was dismissed at preliminary stage without proceeding to a full trial on its merits. 3. That, this Honorouble Judge be pleased to reverse, set aside, and quash the amounts taxed and awarded under Items 8 to 21 (inclusive) regarding transportation and accommodation since were already taxed in Taxation Cause No. 969 of 2026 which arises from Miscellaneous Civil Case No. 29893 of 2024 of which were scheduled and determined on the same dates with Miscellaneous Civil Cause No. 30095 of 2024 hence double taxation. 4. That, this Honorouble Court be pleased to disallow the sum of Tshs 130,000/= taxed by the Taxing Master as costs for accommodation, food, and beverages for a single visit on the 17 day of March 2026, for want of legal justification th and on the ground that the same constitutes double taxation. 5. Costs of this application be provided. 6. Any other relief the Honorouble Judge may deem just and fit to grant. The brief facts of the case are opportune to be stated. The applicant sued the respondent for defamation, claiming Tshs.500,000,000/= as damages. Page. 2 Before commencement of the hearing of the petition, the respondent made an application for interrogatories concerning the authenticity of the WhatsApp messages. However, the applicant did not file any reply to the interrogatories, leading this court to dismiss the suit with costs. The record reveals that, following the said dismissal, the respondent, through Mr. Warehema Kibaha, learned advocate, presented a bill of costs amounting to Tshs.31,636,000/= before the Taxing Officer. After hearing parties on taxation proceedings, the Taxing Officer taxed the bill at a total sum of Tshs.18,170,000/=. Aggrieved by the said decision, the applicant has now approached this court seeking its intervention in respect of the amount taxed. Hence, this ruling. The matter was heard by way of written submissions, with the applicant being represented by Mr. Joseph Mbogela, learned advocates and the respondent enjoyed the legal services of Mr. Erick Alfred Akaro, learned advocates. In his submissions, Mr. Mbogela prayed that the contents of the sworn affidavit of Mr. Henry Lazaro Chaula be adopted and form part of his submissions. With regard to the instruction fee, Mr. Mbogela commenced his submissions by contending that the Taxing Officer misdirected himself in awarding the instruction fee. He submitted that the defamation suit was dismissed for non- compliance with the discovery orders and not on the merits. According to Mr. Mbogela, the Taxing Officer was obliged to exercise his discretion judiciously Page. 3 by reducing the instruction fee to reflect the actual work undertaken. Further, the learned advocate argued that the Taxing Officer was bound to consider the complexity of the matter, the labour employed, the skills required, the time spent, the responsibility assumed and the stage at which the proceedings stood, as illustrated in Rehman (E.A) v Rehman & Co. Ltd [1970] HCD No. 315. Further reliance was placed on Tanzania Rent A Car Limited v Peter Kimuhu (Civil Reference No. 9 of 2020) [2021] TZCA 103 (6 April 2021), where it was emphasized that an instruction fee is not intended to enrich an advocate but is meant to compensate the advocate for the work done. Mr. Mbogela further faulted the Taxing Officer for mechanically adopting the statutory percentage, which, in his submission, amounted to treating the prescribed percentage as mandatory rather than discretionary. He referred the court to Premchand Raichand Ltd and Another v Quarry Services of East Africa Ltd and Others [1972] 1 E.A. 162 in support of the proposition that the Taxing Officer is required to exercise discretion in determining the appropriate instruction fee. In relation to Items 8 to 21 of the bill of costs, Mr. Mbogela faulted the Taxing Officer for awarding costs in respect of transportation and accommodation, contending that the same costs had already been taxed and awarded in Taxation Cause No. 969 of 2026, arising from Miscellaneous Civil Page. 4 Cause No. 29893 of 2024. According to Mr. Mbogela, both Miscellaneous Civil Cause No. 30095 of 2024 and Miscellaneous Civil Cause No. 29893 of 2024 were before the same Judge, were heard on the same dates and involved the same advocates, who travelled from Tanga to Morogoro. It was, therefore, Mr. Mbogela submission that the expenses in respect of the two matters were incurred simultaneously and ought not to have been awarded twice. The learned advocate further challenged the award of Tshs.20,000/= per journey and Tshs.2,080,000/= for accommodation for both advocates, arguing that the same expenses had already been awarded in Taxation Cause No. 969 of 2026. He contended that the award was contrary to the principle that litigation expenses must be reasonable and genuinely incurred, as emphasized in Ndege v Aliya & Another [1988] TLR 91. On that basis, he submitted that the Taxing Officer had misapplied the applicable principles of taxation. Lastly, with regard to the additional sum of Tshs.130,000/= awarded for accommodation, food and beverages in respect of a single appearance on 17/03/2026, Mr. Mbogela submitted that the award lacked legal justification. He argued that the said expenses had already been catered for in the sum of Tshs.500,000/= awarded as instruction fees for conducting the bill of costs, and that the respondent had not disputed this position in the counter-affidavit. Page. 5 Furthermore, Mr. Mbogela contended that the ruling did not identify any statutory provision or evidence justifying the additional allowance, particularly as the said expenses were not included among the costs of prosecuting the bill of costs. The learned advocate, therefore, invited this court to set aside the award of Tshs.130,000/=. On the foregoing submissions, Mr. Mbogela urged this court to find merits in this referecne, set aside the decision of the Taxing Officer and allow the application with costs. In response, Mr. Akaro prayed that the contents of the counter-affidavit be adopted and form part of his submissions. Commencing with the issue of the instruction fees, Mr. Akaro submitted that the Ninth Schedule to the Advocates’ Remuneration Order, 2015 provides for a minimum scale of 3% for contentious proceedings involving a liquidated sum exceeding Tshs.400,000,000/=. He pointed out that the applicant had claimed Tshs.500,000,000/=, which fell within the prescribed 3% scale. Accordingly, he submitted that the Tshs.15,000,000/= awarded by the Taxing Officer as instruction fee was within the provisions of the law. Mr. Akaro further stressed that the applicant was conflating two suits which he himself had instituted against two different individuals. He argued that, if the applicant intended to pursue the claims against the respondent and the other individual jointly, he ought to have sued them jointly. Mr. Akaro, therefore, Page. 6 contended that the applicant could not now seek to avoid the consequences arising from the separate proceedings. As regards the termination of the proceedings at an early stage, Mr. Akaro strongly disputed the applicant’s account. He submitted that the discovery proceedings involved extensive research, preparation of submissions and frequent appearances, all of which ultimately resulted in the dismissal of the suit. Mr. Akaro acknowledged the authorities cited by the applicant, namely Tanzania Rent A Car Limited v Peter Kimuhu (supra) and Premchand Raichand Ltd and Another v Quarry Services of East Africa Ltd and Others (supra). However, he contended that the applicant had failed to demonstrate how the respondent had enriched himself through the award of the instruction fee. He further submitted that the applicant had not demonstrated that no research or substantial work was undertaken during the discovery proceedings. With regard to Items 8 to 21 of the bill of costs, Mr. Akaro submitted that Taxation Cause No. 968 of 2026 and Taxation Cause No. 969 of 2026 were distinct matters and that the amounts claimed in the respective taxation causes were also different. He further contended that each bill of costs arose from separate proceedings and that the Taxing Officer was not permitted by law to consolidate or merge the interests of different parties in separate proceedings. Page. 7 It was Mr. Akaro’s contention that the bill of costs was presented on the basis that the expenses had already been incurred by the respondent and paid to his counsel. He argued that it was the applicant who had instituted separate suits against different individuals and having lost both cases, could not now seek to evade his responsibility to compensate the respondent for the costs actually incurred. In conclusion, Mr. Akaro submitted that the application was devoid of merit and ought to be dismissed with costs, as the Taxing Officer had awarded the costs justly and in accordance with the applicable principles of taxation. In rejoinder, Mr. Mbogela reiterated the submissions made in his submissions in chief. He, however, conceded that the Advocates’ Remuneration Order provides for a statutory scale in respect of instruction fees, but maintained that each case must be determined according to its particular circumstances. He further submitted that although the two taxation causes were distinct, the accommodation and transportation expenses had already been awarded in Taxation Cause No. 969 of 2026 and therefore could not properly be awarded again in Taxation Cause No. 968 of 2026, since the same expenses had been incurred and utilized by the same advocates for both matters. This marked the end of the parties’ strongly contested submissions. Page. 8 Having considered the parties’ respective submissions, both for and against the application, together with the ruling of the Taxing Officer, the issue calling for determination by this court is whether the application has merits. It is a settled position of law that, in proceedings relating to a bill of costs, the award of an instruction fee, where no rate is stated, is primarily within the discretion of the Taxing Officer. Courts are slow to interfere with the rate and/or exercise of such discretion unless it is demonstrated that the Taxing Officer exercised his discretion injudiciously, acted upon a wrong principle, or took into account irrelevant or improper considerations. This principle was articulated in the case of Njake Enterprises Limited vs Tanzania Sewing Machine Co. Limited (Civil Reference No.12 of 2023) [2025] TZCA 1053 (6 October 2025) at Dar es Salaam. It is also worth noting that, in proceedings relating to a bill of costs, an award of instruction fees is intended to indemnify the successful party for expenses reasonably incurred and paid to his or her advocate in the course of the proceedings. This position was fortified by the decision of the Court of Appeal in Rafael Shinane v Sosteness Magezi (Civil Appeal No. 465 of 2024) [2026] TZCA 663 (19 June 2026), Shinyanga, where the Court stated: Page. 9 “Much as payment of fees is consequential to engagement and instructions to the advocated by client. After all, such a contractual relationship may, among others, be exhibited by drawing and filing of the pleadings by advocate on behalf of client, including some other acts that may be similarly demonstrate legal presentation in court” Guided by the foregoing holding, I agree with Mr. Akaro’s submission that the interrogatories involved research and that the respondent filed the requisite pleadings upon being served with the applicant’s petition. It is also not disputed that the applicant had claimed Tshs.500,000,000/= as damages against the respondent. The claim therefore falls squarely within Item 8 of the Ninth Schedule to the Advocates’ Remuneration Order, 2015, which provides for a fee of 3% in respect of a claim exceeding Tshs.400,000,000/=. Applying the prescribed percentage to the amount claimed results in an instruction fee of Tshs. 15,000,000/=. Having that in mind and the position of the law, I find no reason to disturb the correct rate pegged by the Taxing Officer. Otherwise, to hold as argued by Mr. Mbogela will undermine the relevance of the rate stated under the 9 Schedule. th That said and done, I find Mr. Mbogela arguments far from convincing me to hold otherwise and are rejected. Page. 10 On the second ground concerning transportation and accommodation costs, the applicant contended that the Taxing Officer erred in awarding transportation and accommodation expenses without taking into account that similar expenses had already been awarded in Taxation Cause No. 969 of 2026, arising from Miscellaneous Civil Cause No. 29893 of 2024, which involved the same advocates and the same dates of appearance. According to the applicant, awarding the same expenses in both matters amounted to double payment. On the other hand, Mr. Akaro refuted the applicant’s contention, asserting that the claims arose from two distinct proceedings involving different parties and were the subject of separate taxation causes. He, therefore, submitted that the Taxing Officer was not in a position to treat the two taxation causes as one, notwithstanding, that the same advocates represented the respective parties. Having considered the parties’ submissions and paragraph 11 of the applicant’s affidavit, it is not disputed that the applicant instituted two distinct causes against the respondent and another person who is not party to this reference, and that each matter resulted in a separate ruling. In the circumstances, the applicant cannot fault the Taxing Officer for awarding accommodation and transportation expenses in the respective taxation causes merely because the matters involved the same advocates and were scheduled for hearing on the same dates. Page. 11 Furthermore, it must be borne in mind that the expenses in question were not incurred by the advocates themselves but by the respondent, who had already paid for the accommodation, meals, beverages and transportation of his advocates for purposes of attending and prosecuting the case instituted by the applicant. There is no evidence before this court demonstrating that the respondent did not incur those expenses. It is also not disputed that the advocates, who are based in Tanga, travelled from Tanga to Morogoro to attend the proceedings. Neither is there evidence that the other party in Taxation Cause No. 969 of 2026 did not incur similar expenses, as suggested by Mr. Mbogela. In the foregoing circumstances, I find no basis upon which to interfere with the Taxing Officer’s decision to award Tshs.120,000/= for transportation and Tshs.2,080,000/= for accommodation, meals and beverages to the respondent. This is, particularly, so because the applicant does not dispute the amounts taxed as such, but rather challenges the award on the ground that allowing the same expenses in both matters amounts to double payment. I find that contention unsustainable in the circumstances of this case and is hereby rejected. Lastly, the applicant faulted the Taxing Officer for awarding Tshs.130,000/= for accommodation, food and beverages in respect of a single appearance on 17/03/ 2026, contending that the said expenses were already covered by the Tshs.500,000/= awarded as instruction fees for Page. 12 preparing and prosecuting the bill of costs. Although the respondent did not make submissions on this particular issue, I find the applicant’s argument misconceived. The sum of Tshs.500,000/= was awarded as instruction fees for preparing and prosecuting the bill of costs, whereas the sum of Tshs.130,000/= was awarded separately in respect of accommodation, meals and beverages incurred on the particular occasion when the respondent’s counsel appeared before the taxing officer. Accordingly, I find that the sum of Tshs.130,000/= was properly and reasonably awarded and there is no basis for this court to interfere with the taxing officer’s decision in that regard. For the foregoing reasons, I find that this reference has to fail and is hereby dismissed. Accordingly, I order that each party shall bear its own costs of the reference in order to end this litigation. Order accordingly. Dated at MOROGORO this 4th of September 2026 . S. M MAGOIGA JUDGE OF THE HIGH COURT Page. 13