Mike Wilhelm Kitwaka v Parseko Vicent Kone and Latajewo Langeu Sayori

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT TANGA CIVIL REFERENCE NO. 000014179 OF 2025 MIKE WILHELM KITWAKA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS PARSEKO VICENT KONE .............................. RESPONDENT / DEFENDANT LATAJEWO LANGEU SAYORI .............................. RESPONDENT / DEFENDANT RULING CHABA, J This reference arises from the decision of the Taxing Officer, Hon. B.R. Nyaki, Deputy Registrar, delivered on 18 October, 2022 th in Taxation Cause No. 30 of 2021, whereby the Respondents’ Bill of Costs was taxed at a total sum of TZS. 34,418,000/=. As background, the said Bill of Costs emanated from Civil Case No. 6 of 2019, an ordinary civil suit in which the Plaintiff claimed special damages amounting to TZS. 406,800,000/= for the alleged loss of 452 cattle. The suit was heard and ultimately dismissed with costs on 11 October, 2021 . In taxing the Bill of Costs, the Taxing th Officer allowed, inter alia, TZS. 24,408,000/= as instruction fees, being TZS. Page. 1 12,204,000/= for each Respondent calculated at the rate of three per cent (3%) of the claimed sum of TZS. 406,800,000/=; TZS. 8,100,000/= as attendance costs, calculated at TZS. 300,000/= per attendance for 27 attendances, covering transport from Arusha to Tanga, meals and accommodation; and TZS. 1,800,000/= as costs of the taxation proceedings. Aggrieved by the said taxation, the Applicant has preferred the present reference under Order 7(1) and (2) of the Advocates Remuneration Order, 2015, G.N. No. 263 of 2015, seeking the following orders:- i. That, this Honorable Court be pleased to vary, set aside and/or quash the ruling/decision of this Court Hon. B.R. Nyaki - Taxing Officer dated 18 October, 2022 th in Taxation No. 30 of 2021. ii. Costs of this reference. iii. Any other order as the Honorable Court may deem fit and just to grant. The application is supported by the affidavit sworn by Mike Wilhelm Kitwaka, the applicant, and was opposed by the joint counter affidavit deponed by the respondents' counsel, Linda Lugano. The applicant also filed a reply to the counter affidavit. By consent of the parties and with leave of this Court, the reference was heard and determined by way of written submissions. The Applicant was represented by Mr. Odhiambo Kobas, learned advocate, while the Respondents were represented by Mr. Jeremiah S. Mjema, also learned advocate. Page. 2 In support of the reference, learned advocate for the Applicant adopted the contents of the Applicant’s affidavit and written submissions. He advanced four principal grounds. First, that the impugned decision was delivered without notice to him of the date fixed for its delivery. Second, that the sum of TZS. 24,408,000/= awarded as instruction fees was manifestly unreasonable, as it amounted to a double award of instruction fees to the Respondents who were jointly represented, filed a joint defence, and called only one witness. Third, that the sum of TZS. 8,100,000/= awarded as appearance costs was excessive and unsupported by receipts. Fourth, that the award of TZS. 1,800,000/= as costs of taxation was unwarranted under Order 48 of the Advocates Remuneration Order, 2015. In support of those submissions, counsel relied on Omary Shabani Nyambu v. DUWASA (Civil Appeal No. 303 of 2020); Tropical Air (Z) Ltd v. Godson Eliona Moshi (Civil Appeal No. 48 of 2015); Cosmas Construction Co. Ltd v. Arrow Garment Ltd [1992] TLR 127; Mary Siril Chuwa and 7 Others v. Uhuru Shimbwe Rural Primary Cooperative Society (Civil Appeal No. 76 of 2021) [2024] TZCA 428 (11 June 2024); Attorney General v. Amos Shavu (Taxation Reference No. 2 of 2000); Regional Commissioner of Shinyanga v. Bernard Msonga Sizasiza (Civil Reference No. 01 of 2019); and John Momose Cheyo v. Stanbic Tanzania Ltd (Commercial Reference No. 72 of 2018). In response, Mr. Jeremiah S. Mjema, counsel for the Respondents prayed to adopt the contents of their joint counter affidavit and written submissions in reply. He submitted that the Applicant was aware of the taxation proceedings through his counsel, Ms. Linda Lugano, learned advocate, who held brief for Mr. Jonathan Page. 3 Wangubo, learned advocate, on 11 July, 2022, when the matter was ordered to be th disposed of by way of written submissions. He contended that the Applicant’s failure to file written submissions amounted to a failure to defend his case, relying on Godfrey Kimbe v. Peter Ngonyani (Civil Appeal No. 41 of 2014) and NIC of Tanzania v. Shengana Ltd (Civil Application No. 20 of 2007). On instruction fees, Mr. Mjema submitted that joint representation does not merge the separate interests of the parties and that each Defendant’s liability remains distinct. In support of that proposition, he relied on the authorities of Peter Osongo Ogeto t/a Ogeto & Ogeto Advocates v. Muchiri (Environment and Land Misc. Application, Kenya, 28 July 2022) and NIC Bank Tanzania Limited v. Steam and Power (T) Ltd and 6 Others [2017] TZHC. On appearance costs, the counsel submitted that the amount allowed was reasonable, particularly as the Taxing Officer had reduced the claimed amount from TZS. 450,000/= to TZS. 300,000/= per appearance, taking into account the distance between Arusha and Tanga. He further contended that production of receipts is not an ipso facto requirement for an award of such costs. Having carefully considered the respective submissions of the parties and the material placed before this Court, I consider the following issues to arise for consideration, determination and decision thereon: 1. Whether the impugned decision was delivered without notice to the Applicant; 2. Whether the Taxing Officer erred in principle by awarding instruction fees amounting to TZS. 24,408,000/=; Page. 4 3. Whether the sum of TZS. 8,100,000/= awarded as appearance costs was manifestly excessive; and 4. Whether the award of TZS. 1,800,000/= as costs of taxation was justified. To begin with, I am mindful of the settled position of the law regarding the powers and limits of a Taxing Officer in taxation matters. The award of costs lies within the discretion of the Taxing Officer, and this Court will ordinarily be slow to interfere with the exercise of that discretion unless it is demonstrated that the Taxing Officer acted on a wrong principle, took into account irrelevant considerations, failed to take into account relevant considerations, or otherwise exercised the discretion injudiciously. This principle has been articulated in numerous decisions of this Court and the Court of Appeal, including Premchand Raichand Ltd and Another v. Quarry Services of East Africa Ltd and Others (No. 3) [1972] 1 E.A. 162 and Tanzania Rent A Car Limited v. Peter Kimuhu (Civil Reference No. 9 of 2020) [2021] TZCA 103 (6 April 2021). In the latter case, the Court emphasized that: “…the taxing officer has been given wide latitude and discretion to determine taxing costs as it appears to him to be proper for attainment of justice. However, the said discretion should be exercised within the cost scales prescribed in the Rules…”. Guided by the foregoing principle, I now proceed to determine the issues framed for consideration. Page. 5 Regarding the first issue, namely, whether the impugned decision was delivered without notice to the Applicant, the Applicant’s case is that he was not informed of the date fixed for delivery of the ruling. He denies having instructed Advocate Linda Lugano to represent him and disputes that she was properly holding brief for his advocate of record, Mr. Jonathan Wangubo. Learned counsel for the Respondents, on the other hand, contend that on 11 July, th 2022, Ms. Linda Lugano appeared before the Taxing Officer holding brief for Mr. Jonathan Wangubo, learned advocate, who was on record for the Applicant. It is their position that the scheduling order and subsequent processes, including notice of the date fixed for delivery of the ruling, were duly communicated through Ms. Lugano. A perusal of the record confirms that, on 11 July, 2022, Ms. Linda Lugano, learned th advocate, appeared before the Taxing Officer holding brief for Mr. Jonathan Wangubo, advocate for the Applicant. The Taxing Officer thereafter issued a scheduling order for the filing of written submissions. In the absence of any indication on record that Mr. Wangubo disputed or repudiated Ms. Lugano’s appearance on his behalf, the Taxing Officer was entitled to treat her as properly appearing for the Applicant on that occasion. In those circumstances, the Applicant’s grievance that he had not personally instructed Ms. Lugano is, with respect, a matter internal to the relationship between him and his advocate on record. It does not, by itself, render the proceedings or the resulting decision a nullity. The maxim vigilantibus non dormientibus jura subveniunt, meaning in English that, “the law assists the vigilant, not those who sleep on their rights,” is apposite in this regard. The Applicant, through counsel, was aware of the Page. 6 proceedings, yet failed to file written submissions as directed and did not follow up the matter for a considerable period thereafter. I therefore find no merit in the first ground. Turning to the second issue, namely, whether the Taxing Officer erred in principle by awarding instruction fees amounting to TZS. 24,408,000/=, this is the principal ground of the reference. The record reveals that the Taxing Officer applied Item 8 of the Ninth Schedule to the Advocates Remuneration Order, 2015, which provides for an instruction fee of three per cent (3%) where the liquidated sum exceeds TZS. 400,000,000/= in contentious proceedings. The Taxing Officer then applied the amount separately to each Respondent, arriving at a total of TZS. 24,408,000/=, being TZS 12,204,000/= × 2. Learned counsel for the Applicant contends that the Respondents were jointly represented by the same advocate throughout the proceedings, filed a joint Written Statement of Defence, and called only one witness on behalf of both Defendants. On that basis, he submits that the instruction was joint rather than separate and that the Taxing Officer therefore erred in doubling the instruction fee. The Respondents, in resisting that argument, placed reliance on the Kenyan decision in Peter Onsongo Ogeto v. Muchiri (supra), contending that receiving instructions from multiple clients is distinct from preparing common pleadings and that joint representation does not necessarily merge the individual interests of the parties. While that reasoning may carry persuasive value, it is not binding upon this Court. More importantly, the question must be determined in light of the position taken by our own Court of Appeal. Page. 7 In Mary Siril Chuwa and 7 Others v. Uhuru Shimbwe Rural Primary Cooperative Society (supra), the Court of Appeal considered a comparable situation where the Taxing Officer had awarded TZS. 5,000,000/= as instruction fee to each of seven appellants who had been jointly sued and represented by the same advocate, thereby producing a total award of TZS. 35,000,000/=. The High Court found that result excessive and unreasonable, and the Court of Appeal upheld that conclusion. At page 11, the Court stated: “…we find nothing to fault the High Court Judge in his decision. It is gathered from the record of this appeal that, having assessed the complexity of the matter; the Taxing Officer awarded Tshs. 5,000,000/= as instruction fee per appellant. However, since there were seven defendants, he ordered the awarded costs to be paid to each of them hence making a total cost of Tshs, 35,000,000/=. Likewise, in reference, the High Court Judge did not disturb the award of Tshs. 5,000,000/= awarded by the Taxing Officer. It is evident from the content of the ruling that, he found it excessive and unreasonable that the said sum was allowed for each appellant while all of them were jointly sued and represented by the same advocate…”. The same approach was adopted in ECOBANK Tanzania Limited v. A.A. Trans Limited & Others, Civil Appeal No. 399 of 2020 [2024] TZCA 100 (23 February 2024). At page 8 of its judgment, the Court of Appeal observed: “…the record shows, like here, both at the level of the trial and those of bill of costs and reference to the High Court judge, the respondents were being represented by the same advocate and their line of defense, according to their joint written statement of defense on the record, was the same. Considering the nature of the substantive claim involved in the suit, we think, the award of costs Page. 8 should have been joint and not separate…”. The above decisions are directly on point and binding upon this Court. In the present matter, the two Respondents were jointly sued, filed a joint defence, were represented throughout by the same advocate, and called only one witness. The Taxing Officer made no inquiry as to whether separate pleadings or proceedings were necessary, as contemplated under Order 62 of the Advocates Remuneration Order, 2015, which provides: “Where the same advocate is employed by two or more plaintiffs or defendants and separate pleadings are delivered or other proceedings had by or for two or more of such plaintiffs or defendants separately, the taxing officer shall consider in the taxation of such advocate's bills of costs, either between party and party or between advocate and client, whether such separate pleadings or other proceedings were necessary or proper, and if he is of opinion that any part of the costs occasioned thereby have been unnecessarily or improperly incurred, the same shall be disallowed.” In the present case, no separate pleadings were filed. The Taxing Officer simply doubled the instruction fee without considering whether such doubling was justified in the circumstances and within the contemplation of Order 62. In my considered view, this amounted to an error of principle. The Taxing Officer failed to exercise his discretion judiciously by not considering whether the nature of the representation and the work actually undertaken warranted separate instruction fees. I am alive to the Respondents’ argument that each Defendant’s liability and exposure to costs remained distinct. However, if accepted without qualification, that argument Page. 9 would substantially defeat the purpose underlying Order 62 in cases of joint representation. The essence of that provision is to ensure that costs are not multiplied merely because several parties are represented by the same advocate where, in substance, no separate work was reasonably necessary. I must also address the Respondents’ reliance on NIC Bank Tanzania Ltd v. Steam and Power (T) Ltd (supra), where the Court upheld an instruction fee calculated at the rate of 3%. That case did not concern the question whether instruction fees could properly be doubled in favour of jointly represented parties and is, therefore, distinguishable. In the present reference, the rate of 3% itself is not under challenge; what is challenged is the multiplication of that fee by two without sufficient justification. I should further address the Applicant’s alternative submission that even a single instruction fee of TZS. 12,204,000/= is excessive. In Attorney General v. Amos Shavu (Taxation Reference No. 2 of 2000) (supra), the Court of Appeal reduced instruction fees from TZS. 26,500,000/= to TZS. 30,000/=. That case, however, concerned instructions to oppose a notice of motion and not the conduct of a full civil suit. The present matter was an ordinary civil suit involving a claim of TZS. 406,800,000/= which proceeded to a full hearing. In those circumstances, application of the 3% rate under Item 8 of the Ninth Schedule was in accordance with the prescribed scale, as affirmed in NIC Bank Tanzania Ltd v. Steam and Power (T) Ltd (supra). The relevant considerations, including the nature of the matter, the amount involved and the work undertaken, as contemplated in Premchand Raichand Ltd and Another v. Quarry Services of East Africa Ltd Page. 10 and Others (supra), do not disclose any sufficient basis for interference with the prescribed rate. I therefore find no justification for disturbing the single instruction fee calculated at 3%. Accordingly, I find that the Taxing Officer erred in principle by awarding double instruction fees without properly considering the requirements governing joint representation. The instruction fee is therefore reduced to a single sum of TZS. 12,204,000/=, being 3% of TZS. 406,800,000/=. Turning to the third issue, namely, whether the sum of TZS. 8,100,000/= awarded as appearance costs was manifestly excessive, the Applicant submits that, TZS. 300,000/= per appearance for travel from Arusha to Tanga was unreasonable. He contends that a return bus fare would cost approximately TZS. 60,000/=, while accommodation and meals should not exceed TZS. 50,000/= per day. He further complains that no receipts were produced in support of the expenses claimed. The Respondents, on the other hand, maintain that the amount allowed was reasonable, particularly as the Taxing Officer had already reduced the claim from TZS. 450,000/= to TZS. 300,000/= per appearance. They contend that the amount covered transport from Arusha to Tanga, accommodation and meals, in accordance with Order 12(1) and Item 3(a) and (g) of the Eighth Schedule to the Advocates Remuneration Order, 2015. In Premchand Raichand Ltd and Another v. Quarry Services of East Africa Ltd and Others (supra), the erstwhile Court of Appeal for Eastern Africa set out the following guiding principles in determining the quantum of costs: Page. 11 “…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 honorable profession; and fourthly, that there must, so far as practicable, be consistency in the awards made…”. Guided by those principles, and having regard to the circumstances surrounding the attendances in question, I am unable to accept the Applicant’s proposition that the advocate ought necessarily to have travelled by public bus at a return fare of TZS. 60,000/=. Such an approach would overlook the practical realities attendant upon legal practice, including the transportation of case files and other documents. As aptly observed by the Court of Appeal of Tanzania speaking through Ramadhani, J.A. (as he then was) in Hotel Travertine Ltd v. National Bank of Commerce (Taxation Civil Reference No. 9 of 2006), an advocate carrying case files and documents may reasonably require other means of transport, and strict documentary proof of every expenditure may not always be practicable. As regards the Applicant’s complaint concerning the absence of receipts, the requirement under Rule 55(1) of the Advocates Remuneration Order is not absolute, but arises where the Taxing Officer specifically requires such proof. In any event, the Taxing Officer exercised his discretion by reducing the amount claimed from TZS. 450,000/= to TZS. 300,000/= per appearance. In the circumstances, I am unable to say that an award of TZS. 300,000/= per appearance, covering transport, accommodation and meals for an advocate travelling from Arusha to Tanga, was Page. 12 manifestly excessive. I therefore find no sufficient basis upon which to interfere with that aspect of the taxation. Regarding the fourth issue, namely, whether the award of TZS. 1,800,000/= as costs of taxation was justified, the Applicant invokes Order 48 of the Advocates Remuneration Order, 2015, which provides:- “When more than one-sixth of the total amount of a bill of costs exclusive of court fees is disallowed, the party presenting the bill for taxation shall not be entitled to the costs of such taxation: Provided that, at the discretion of the taxing officer any instruction fee claimed, may be disregarded in the computation of the amount taxed off that fee in the computation of the one sixth.” The Applicant argues that, the instruction fee having been reduced by half, the amount disallowed exceeds one-sixth of the total Bill of Costs and, consequently, the Respondents ought not to be entitled to the costs of taxation. In support of that contention, he relied on Regional Commissioner of Shinyanga v. Bernard Msonga Sizasiza and John Momose Cheyo v. Stanbic Tanzania Ltd (supra). Order 48, however, contains a proviso empowering the Taxing Officer, in the exercise of discretion, to disregard an instruction fee in computing the amount taxed off for purposes of determining the one-sixth threshold. In the present case, the reduction of the instruction fee does not arise from a finding that the prescribed rate of 3% was excessive or unjustified. Rather, it arises from the erroneous duplication of the fee in favour of two Respondents who were jointly represented, filed a joint Page. 13 defence and called a single witness. The applicable rate under Item 8 of the Ninth Schedule remains undisturbed; the error lay solely in its multiplication. In the circumstances, I consider it appropriate to disregard the disallowed portion attributable to the duplicated instruction fee when computing the one-sixth threshold under Order 48. Upon doing so, I find no sufficient basis for disturbing the award of TZS. 1,800,000/= as costs of taxation. That award shall therefore remain intact. In the upshot, the reference partially succeeds. The award of instruction fees is hereby reduced from TZS. 24,408,000/= to TZS. 12,204,000/=. The awards of TZS. 8,100,000/= as appearance costs and TZS. 1,800,000/= as costs of taxation remain undisturbed. Accordingly, the total amount payable to the Respondents is reduced from TZS. 34,418,000/= to TZS. 22,104,000/=. Considering the partial success of the reference, I direct that each party shall bear its own costs of this reference. Order accordingly. Dated at TANGA this 4th of September 2026 . M. J CHABA JUDGE OF THE HIGH COURT Page. 14