REFERENCE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM REFERENCE NO. 9530 OF 2024 (Arising from the ruling in Bill of Costs No. 34 of2020 delivered on 12th April2023 by Honourable Registrar Hamza) KABULA AZARIA NG'ONDI.............................................. . ist APPLICANT ADIEL KUNDASENY MUSHI................................................. 2nd APPLICANT NEEMA ADIEL MUSHI.......................................................... 3rd APPLICANT VERSUS MARIA FRANCIS ZUMBA ......................................................... RESPONDENT RULING 31/7/2024 & 28/08/2024 GWAE, J This application arises from the decision of the Court (W. Hamza, -Deputy Registrar) Taxing Officer) in Bill of Costs No. 34 of 2020. The Taxing Master taxed the bill of Cost at total of Tshs.2,980,000/=. It was itemised as follows:-Tshs. 2, 500,000/=being instruction fees, Tshs.100, 000/= as attendance costs. Tshs. 80,000/= disbursement on court fee and Tshs.300, 000/= costs of the Bill. Aggrieved, the applicants have brought this taxation reference under Rule 7 (1) and (2) of the Advocates Remuneration Order, 2015 seeking for the following orders:- i 1. That this honourable court be pleased to examine the legality or correctness of the ruling dated 12th April, 2023 where the Taxing Master heard and determined on merit the Application for Bill of Cost No. 34 of 2020 which arose from Misc. Land Application No. 264 of 202 while there is still pending Notice of Appeal against the said decision granted costs to the Respondent. 2. That the Taxing Master erred in law and facts to grant the respondent the instruction fee of Tanzania Shillings 2,500,000/= which is beyond the Scales Prescribed under the Advocates remuneration Order, GN No. 263 of 2015. 3. That, the Taxing Master erred in law and fact to grant the respondent to be paid the amount of Tshs 100,000/= as fair Transport used in attending to Court while there was no any Receipt from Tax driver tendered in Court to prove the existence of the payment of the said amount. 4. Any other relief as the Honourable Court may deem fit and just to grant in the premises hereof. 5. Costs of the Application. The application is supported by joint affidavit sworn by Kabula Azaria Ng'ondi, Adiel Kundaseny Mushi and Neema Adiel Mushi, the applicants and was opposed by the counter affidavit deponed by Regina Herman, the counsel for the respondent. Hearing of the application proceeded orally on 31st July 2024. The applicants enjoyed the legal service of Mr. Peter Nyangi, learned 2 advocate, whilst Ms. Regina Herman, learned advocate, represented the respondent. In support of the application, the applicant's counsel prayed to adopt the contents of the applicants' affidavit and added that, the applicants have filed Notice of Appeal against the decision of this Court in Application No. 264 of 2020 with effect that, the appellants should bear the costs. He further stated that, the Taxing Officer was therefore not legally entitled to entertain the matter before her since there was a Notice of Appeal. He urged this court to refer to the case of Noman Mahboub vs. Milcafe, Commercial Case No. 41 of 2003 (unreported) at page No. 3. In the second ground, Mr. Nyange challenged the award of instruction fee by DR on the reason that, it contravenes Order 46 of the Advocates Remuneration Order, GN No. 263 of 2015 and Order 1 (m) of the 11th schedule of the Advocates Remuneration Order. Mr. Nyange further submitted that, they are not satisfied with the award of Tshs. 100,000/= as the transport fare as there was no receipt to substantiate the claims as required by Order 58 of the Order and section 110 and 112 of the Tanzania Evidence Act, (Cap 6, Revised Edition, 2019). 3 In response, Ms. Regina prayed to adopt their counter affidavit and submitted that there is no evidence as to the presentation of the Notice of Appeal to the Court of Appeal. She added that, the existence of Notice of Appeal does not operate as stay of execution of application of bill of costs unless there is an order of stay. She stated that, the application for costs is to be done within 60 days in terms of Item iv of the Order. To bolster her argument, she cited the case of Rose Mkeku (the administratix of the estate of the late Simon Mkeku) vs. Parves Shabbirdin, Misc. Land Application Case No. 89 of 2021 and Yohana John Kavishe vs Registered Trustee of E.C.T Central Dioces. She added that, under Rule 11(2) of thee Court of Appeal Rules, 2009, the existence of an appeal is not reason for stay of execution. On the second ground, she was of the view that, the taxing master properly taxed the instruction fees by considering the time taken and a number of parties in the dispute. She submitted that, Order 46 of the Order empowers the taxing officer to enhance the costs depending on the circumstances of the case. She added that, in the parties7 dispute, there was more than one applications. She urged this court to refer to the case of George and Another vs. A.S Maskin'! (1980) TLR 53 where it was stated that the court can rarely inter the decision of the 4 taxing master. She further stated that, production of receipts is not among the factors to be considered for grant of costs. She cited that case of Tanzania Rent a Car Limited vs. Peter Kimuhu, Civil Reference No. 9 of 2020. Regarding the award of Tshs. 100, 000/= as a travelling fare. Ms. Regina submitted that, there is no dispute that they have been travelling from Tegeta to the court and vice versa for a period of more than five months. She stated that, according to 11th schedule of the Order, the fare is Tshs. 100, 000/=. Hence, the award of attendance at the rate of Tshs. 100,000/= is proper. Ms. Regina prayed for the court to dismiss the application with costs. In rejoinder submission, Mr. Nyange reiterated his stance in the submission in chief. Having examined the submissions by the counsel for the parties, the issue for determination are as follows:- 1. Whether the taxing officer was legally justified to hear and determine on merit the application for bill of costs while there is a pending Notice of Appeal in the Court of Appeal of Tanzania 2. Whether the award of instruction fee beyond the scales prescribed by under Advocates Remuneration Order, GN No. 263 of 2015 was justified. 5 3. Whether the grant of Tshs. 100,000/= as a fair transport without proof of payment was justifiable. Starting with the first issue, I have gone through the applicant's affidavit in support the application to find if the Notice of Appeal was attached. However, I could not find it despite of being pleaded at paragraph 10 of the applicant's affidavit. More so, even if the Notice of Appeal was attached, as correctly argued by Ms. Regina, the Notice of Appeal does not operate as stay of execution of application for bill of costs unless there is an order for stay. The reason is simple and clear that, according to Item 4 of the Advocates Remuneration Order, the bill of costs has to be filed within 60 days from the date of the order awarding costs. The said Order states that:- "4. A decree holder may, within sixty days from the date of an order awarding costs, lodge an application for taxation by filing a bill of costs prepared in a matter provided for under Order 55." From the above provision, it is clear that, the bill of costs can be filed only within sixty (60) days from the date of the decision, otherwise the taxation cause will be time barred. I am aware of the most of the decision of this court and the Court of Appeal specifically the case of Matsushita Electric Co. Ltd vs. 6 Charles George t/a C.G Travers, Civil Application No. 71 of 2001 (unreported) delivered on 26th October 2018 where it was stated that:- "Once Notice of Appeal filed under Rule 76 (now Rule 83(1) of the Rules) then this Court is seized of the matter in exclusion of the High Court except for application specifically provided for, such as leave to appeal or provision of a certificate of law." Also in Rose Mkeku (the administratix of the estate of the late Simon Mkeku) vs. Parvez Shabbirdin, Misc. Land Application Case No. 89 of 2021, it was stated that:- "The decision in Matsushita Electric Co. Ltd does not bar a decree holder to file and prosecute a bill of costs... As stated above, I do not find any miscarriage ofjustice to tax the bill of costs once filed, even when there is a pending appeal to the Court ofAppeal." I subscribe to the above legal position and proceed to hold that, the taxing officer was legally right to determine the taxation proceedings even if the Notice of Appeal was pending in the Court of Appeal. More so, the awarded bill of costs if executed, the applicants shall have a remedy by way of restitution if their intended appeal succeeds as provided for under section 89 of the CPC. Regarding the second ground on the applicants' complaints on the award of the instruction fee (Tshs.2, 500, 000). The record reveals 7 that, the respondent claimed Tshs.2, 500, 000/= as instruction fee and the Taxing Officer awarded the same wholly. It is a general rule that, the award of instruction fee is within the discretion of a taxing officer and this Court will always be reluctant to interfere with his or her decision, unless it is proved that, the taxing officer exercised such discretion injudiciously or has acted upon a wrong principle or applied a wrong consideration. This has been articulated in abundant decisions of this Court and the Court of Appeal including Tanzania Rent a Car Limited vs. Peter Kimuhu, Civil Reference No. 9 of 2020, CAT Dar es Salaam and Premchand Raichand Ltd and Another vs. Quarry Services of Each Africa Ltd and Others, (No.3) [1972] 1 E.A 162. In Premchand Raimchand Ltd and Another (Supra) the erstwhile Court of Appeal for Eastern Africa established the following principles for consideration in determining the quantum of an instruction fee:- " First, that costs shall not be allowed to rise to such a level as to confine access to courts to only the wealthy; second, the successful litigant ought to be fairly reimbursed for the costs he reasonably incurred; thirdly, the general level of the remuneration of advocates must be such as to attract worthy recruits to an honourable profession; and fourthly, that there 8 must, so far as practicable, be consistency in the awards made, both to do justice between one person and another and so that a person contemplating litigation can be advised by his advocates very approximately, for the kind of case contemplated, is likely to be his potential liability for costs." Further in Tanzania Rent a Car Limited vs Peter Kimahu, (Supra) the Court of Appeal held that:- "/Js it can be gleaned from the above provision, the taxing officer has been given wide latitude and discretion to determine taxing costs as it appears to him to be proper for attainment ofjustice. However, the said discretion should be exercised within the cost scales prescribed in the rules. In addition, and as it was argued by Mr. Shayo, the taxing officer is also supposed to consider other factors such as the greater the amount of work involved, the complexity of the case, the time taken up at the hearing including attendances, correspondences, perusals and the consulted authorities or arguments." At page 3 of the ruling of the bill of cost in the instant matter, the taxing made the following consideration in awarding the instruction fee:- "There's no doubt that the decree holder was represented in the said Misc. Land Application No. 264 of2020 which was dismissed with costs, I find it proper 9 to tax this item for Tshs.2,500,000/= as instruction fee." The ruling subject of the bill of costs was dully attached in the respondents' counter affidavit. It is gathered from the said ruling that, the applicants were seeking for extension of time to appeal against the decision of this Court in Misc. Land Application No. 932 of 2017. As the Court was counting the period the applicant's delay, it was observed that the applicants delayed 57 days from 27th March 2020 to the date of filing of the application. As I was counting the time taken from filing to the decision of the application, I found that, it was filled on 22nd May 2020 and the ruling was delivered on 11th December 2020, almost six months. Further, I observed that, the application was argued on merit and the in its verdict, the Court ended dismissing the application with costs. Since the application was determined on merit, it is obvious that, the matter involved was complex one, which required an intensive research by the parties. I am aware that, according to Order l(m) (i) of the 11th Schedule of the Advocates Remuneration Order, GN No.263 of 2015, the scale for instruction fee on opposed chamber applications is Tshs. 1, 000, 000/=. However, upon considering the time spent, the complexity of the matter and other factors articulated on the above cited decisions, I find that the io instruction fee of Tshs.2, 500,000/= awarded to the respondent was slightly excessive. In my view, the award of Tshs.l, 500, 000/= is reasonable and just. I therefore proceed to set aside Tshs.2, 500, 000/= awarded and award Tshs. 1,500,000/= as instruction fee. Regarding the award of Tshs. 100, 000/= as a fare transport, it was the submission by the counsel for the applicants that the award contravened Order 58 of the Order, which provides that:- "58(1) Receipts or vouchers for all disbursements charged in a bill of costs (other than witness allowances and expenses supported by a statement signed by an advocate) shall be produced at taxation if required by the taxing officer." Guided by the above provision, it is clear that, vouchers and receipts charged in the bill of costs shall be produced during taxation only when required to do so by the taxing officer. That in my view, the issue of producing voucher and receipts remain in the discretion of the discretion of the taxing officer, not otherwise. The taxing master when awarding transport costs considered the distance from Tegeta area to this Court, which to her view, the amount charged was minimum and fair. I do verily agree with the findings of the Taxing Master, taking into consideration that, the matter was instituted on May 2020 and concluded on December 2020, covering a period of more than six months. Thus, it is obvious that the respondent inevitably incurred travelling costs from Tegeta area to Kivukoni and vice versa. Therefore, Tshs. 100, 000/= awarded as transport costs, in my opinion was fair and reasonable perceivable by any reasonable person dwelling in Dar es salaam. In the upshot, I partly allow the applicant's reference. The award of Tshs.2, 500,000/=as instruction fee in favour of the respondent is hereby set aside and substituted to the award of Tshs. 1,500,000/=. The award of Tshs. 100, 000/= for fair transport remains untouched. Each party to bear its own costs. It is so ordered. DATED at DAR ES SALAAM this 28th day of August 2024.