REFERENCE NO

IN THE HIGH COURT OF TANZANIA MUSOMA SUB - REGISTRY AT MUSOMA REFERENCE NO. 00007612 OF 2024 REF NO. 202404081000007612 {Arising from the decision of the District Land and Housing Tribunal for Tarime at Tarime in Bill of Costs No. 16 of2023) BETWEEN CHACHA MWITA............................................................. APPLICANT VERSUS MARWA KINOGO............................................................. RESPONDENT RULING 22nd & 25th July, 2024 M. L, KO MBA, J, The application at hand is the reference to this court from the decision of the Taxing Officer, Hon. Mahelele M.S delivered on 13th March, 2024 in Bill of Costs No. 164 of 2023. The application was brought by way of chamber summons premised under Order 7 (1) and (2) of the Advocates Remuneration Order, GN No. 263 of 2015 and supported by an affidavit deponed by the applicant, Chacha Mwita. Upon service, the respondent also filed counter affidavit to contest the applicant's application. Page 1 of 5 Briefly, before the District Land and Housing Tribunal for Tarime at Tarime (DLHT), the applicant herein filed the land disputed against the respondent in Land Application No. 35 of 2020. He was claiming the respondent to trespass to his piece of land and conducting agriculture activities. At the end, the odds were against the applicant and the application was dismissed with costs. The respondent filed the bill of costs in Misc. Application No. 164 of 2024 where the DLHT ruled in his favour by ordered the applicant to pay the respondent a total amount of TZS 7,132,000/=. Being dissatisfied by the same decision, the applicant lodged the present application prayed this court to: 1, Examine the order of Taxing Officer in Bill of Costs No. 164 of 2024 for purpose of satisfying itself as to the correctness, legality and errors in the said awards, 2. Quash andsetas\te the order awarded and make proper order. 3. Provide Costs. In his affidavit on paragraph 3 the applicant is complaining on three points of law to be determined. The points are; 1. That the Taxing Officer contravened order 64 (1) of the Advocates Remuneration Order, 2015. Page 2 of 5 2. That the receipt tendered was less to show the value of money awarded. 3. That the amount of money charged by the Advocate contravened the instruction fees of the Advocates Remuneration Order, 2015, S. 1 (m) (i) (U) of the eleventh schedule. During the hearing of this application both parties appeared solo, unpresented. In his submission the applicant stated that the advocate was ordered to be paid a lot of money while he attended on court only three times and then he withdraws. The applicants proceeded that, the case was dismissed but prior to dismissal they attended 27 times in court. He prayed the costs to be reduced. In response, the respondent briefly stated that, he claimed TZS 13,540,000/= which was the actual costs but he was awarded TZS 7,132,000/= and he was fine with it. I have carefully considered the submission by both parties and application record. The applicant's concern is excessive amount taxed by Taxing Officer against him especially the advocate engagement fees. The applicant complained that the respondent's advocate appeared only three times before the court and he withdraw himself even before the Page 3 of 5 case began. Thus, throughout the trial the respondent was fended for himself. I perused the proceedings of the Land Application No. 35 of 2020 and I found it is true the respondent's advocate withdraw himself from the case before the hearing took place. But even this court was shocked to find the bill of costs shows the respondent's advocate was engaged for TZS 11,000,000/=. Even though the Taxing Officer cut the fees to 6,000,000/= but still there is no justification taking into account that the advocate appeared only three times and withdraw himself from continuing to represent the respondent even before the hearing took off. Pursuant to item 11 (1) (m) of the 11th Schedule of the Advocates Remuneration Order, 2015 the instruction fee for application for unopposed application is Tshs. 500,000/= and Tshs. 1,000,000/= for the opposed application. In the impugned Bill of costs, a total sum of TZS 11,000,000/= was claimed as instruction fee for defending the Land Application No. 35 of 2020 although the purpose was not fulfilled. Although, the Taxing Officer Taxed cut off to TZS 6,000,000/=, but that is still the excessive amount compared to the work done. The Taxing Officer ought to have taxed off the excess amount and awarded the scaled amount which is Tshs. 1,000,000/=. Page 4 of S It should be taken into account that in Taxation proceedings, instruction fee is awarded to compensate adequately an advocate for the work done in preparation and conduct of a case and not to enrich him. Furthermore, it should be noted that the purpose of Taxation is to reimburse the successful party and not to punish the looser or enrich the successful. See Wambura Chacha vs Samson Chorwa [1973] LRT No. 4. In the circumstance, I reduce the instruction fee to TZS 1,000,000/=. Regarding the other calculation I find no reasons to fault the finding of the Taxing Officer. I confirm the sum of Tsh 2,132,000/= which is hereby taxed as a total taxed amount. It is so ordered. M. L. KO MBA Judge 25th July, 2024 Page 5 of 5