North Mara Gold Mine Limited vs John Nyaitara Steven

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MUSOMA TAXATION CAUSE NO. 000016926 OF 2026 NORTH MARA GOLD MINE LIMITED .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS JOHN NYAITARA STEVEN .............................. RESPONDENT / DEFENDANT RULING NDYEKOBORA, DR RULING Date of last Order: 12 August, 2026 th st Date of Ruling: 01 September,2026. M. O. NDYEKOBORA, TAXING OFFICER This is an application for taxation (the application) by NORTH MARA GOLD MINE LIMITED (the applicant/decree holder) against JOHN NYAITARA STEVEN (the respondent/judgment debtor). The applicant claims a total of Tshs 23,0930,000.00/= as the costs incurred in prosecuting Land Case No. 18134 of 2024 (the suit). Initially, the judgment debtor filed the suit before this court, claiming a total of Tshs.1, 000,000,000/=as compensation for unexhausted improvements against the decree holder. When the suit was called for hearing Page. 1 before Hon. Kafanabo, J., on 29th April, 2026, the judgment debtor did not enter an appearance. The suit was thus dismissed with costs for want of appearance, hence this application. The application has a total of 19 items, to wit: item 1 is the instructions fee of Tshs 10,000,000/=; item 2 is drafting the written statement of defence being 21.2. folios, Tshs 468,000/=; 3,4,5,6,7,8,9,10,11,12,15, and 16 is attendance fee which is 11,000,000/= in total means 100,000/= per attendance, item 17 is costs for drafting and attending bill of costs Tshs 1,000,000/=; item18 is the court fee for filing written statement of defence Tshs 100,000/=; item 19 is that on 26/08/2025 is the transport, accommodation and allowance of the applicant’s advocate Tshs 10,125,000/=. When the matter was called on for hearing, Ms Rosemary Makori, learned counsel, appeared for the applicant, while Mr Geofrey Kalaka, learned counsel, appeared for the respondent. Submitting on item1, Ms Makori prayed that the bill be taxed as per Schedule 9, item 8 of the Advocate Remuneration Order, as the judgment debtor's claim was Tshs Bil 1. On Item 2 for drafting the written statement, Ms Makori submitted that it costs Tshs. 468,000/= as the Written Statement Defence has 21 folios, where one folio has 100 words, which is charged at Tshs 30,000/= per folio, and this is in accordance with Schedule 8 item 2 (a) of the Advocate Remuneration Order. She prayed the amount be taxed as presented. On the attendance fee as indicated in items 3,4,5,6,7, 8,9,10,11,12,13,14,15,16 Ms Makori submitted that they attended in court for mention, first PTC, Mediation, final PTC and hearing; she prayed that Tshs.100,000/= be taxed as presented for each item as they spent more than 15 minutes. Ms Makori prayed that Tshs. 1,400,000/= be taxed accordingly for the above-mentioned items regarding attendance according to the 8th Schedule, item 3(a), Page. 2 ordinary case per 15 minutes TShs 50,000/=. On Item 17, which is the cost of attendance to argue the bill of costs, Ms Makori submitted that the costs include preparation and attendance of the bill of costs; TShs 1,000,000 is requested. However, they attended through VC; she left it to the court to use its discretion to tax the amount. For the disbursement, Ms Makori prayed for TShs 100,000/= being the filing fee of the WSD. She also prayed for the allowance and accommodation they spent during the conduct of the case. She prayed the annexed invoices and receipts as proof, which form the total bill of TShs 23,093,000/=. In response, Mr Kalaka started to submit on the instruction fee of Tshs.10,000,000/= based on the compensation of 1 billion. But the grant of the compensation is at the discretion of the court. He further submitted that Order 47 of the Advocate Remuneration Order shows that the charges should be according to the work involved and time spent, but the matter was not heard in its finality as it was dismissed; no work was involved. I pray the court to consider taxing the instruction fee. On item 2, Mr Kalaka prayed the court to use its discretion to determine whether the facts stated by the applicant do exist. Items 3-16, Mr Kalaka submitted that the law is very clear under the Eighth Schedule; item 3(a) of the Advocate Remuneration order provide Tshs 50,000/= be charged for fifteen minutes. The case was being adjourned, and it had never been heard; it was dismissed for non-appearance of parties. No evidence was adduced; the matter was just adjourned. He stated that Tshs 100,000/= per attendance is not reasonable. Page. 3 Responding on item 17, the cost of attending, instruction to argue the bill of costs, Mr Kalaka prayed the court to be guided by Order 55 item 3; the applicant's learned counsel was supposed to leave it blank for the taxing officer to fill it. He prayed the amount indicated be disregarded. Mr Kalaka did not object to item 18. On item 19, Mr Kalaka objected to it based on Order 61 (3) of the Advocate Remuneration Order. There was no statement to endorse the amount claimed under item 19; the item is so vague. To bolster his argument, he made reference to the case of SKEM Real Estate Developers Limited Vs Serengeti Breweries Ltd, Commercial Reference No 17/2022(2023 TZHC), Commercial Division 184 Tanzill, page 13. He prayed that item 19 be disregarded. Mr Kalaka finally submitted that the bill of costs in its totality was so excessive, and according to Order 48, he prayed the court to disregard the whole bill in its totality. Rejoining, Ms Makori submitted that the matter was not determined on merit but was already scheduled for a hearing. Concerning the drafting fee of the WSD, she prayed the court to visit the document as it is in the court's record. Items 3-16, Ms Makori submitted that the proceedings are before this court and clear shows the Judgment debtor's learned counsel was not appearing in the main case. She thus prays for the amount so claimed for attendance per attendance. She prayed that the court use its discretion to grant the costs involved in the bill of costs. Order 61 (3) of the Advocate Remuneration Order is for the witness and does not apply. She requests that the travel costs from Mwanza to Musoma and vice versa be paid, and not otherwise. Page. 4 I have dispassionately considered the court records, the parties’ pleadings, and rival submissions on the application. I find it proper to start with the claim of instruction fees. The same is usually in the discretion of the Taxing Officer. It is judicial discretion whereby there are guidelines on what should be considered before the same are awarded. In the case of Premchand Raichand Ltd &Another vs Quarry Services of East Africa & Others (1972)1 E. A 162, the erstwhile Court of Appeal for East Africa laid down four guiding principles which are to be considered when determining the quantum of instruction fee to be awarded. These are; First, the costs shall not be allowed to rise to such a level as to confine access to the court to only the wealthy; Secondly, that the successful litigant ought to fairly reimbursed for costs he reasonably incurred; Thirdly, the general level of remuneration of advocates must be such as to attract recruits an honourable profession; and Fourthly, that, there must, so far as practicable be consistency in the awards made, both to do justice between one person and another and so that the person contemplating litigation can be advised by his advocate very approximately, for the kind of case contemplated, is likely to his potential liability for costs. In Afriscan Group (T) Ltd vs. Said Abdallah Msangi and Another [2016] TLS LR at page 458, it was held that; "The general rule regarding costs is that a successful party must have its costs. The court must assign reasons for departing from this general rule as envisaged under section 30(2) of the Civil Procedure Code... the general rule is that costs should follow the event and the successful party should not be deprived of them except for good cause." Item 1 is about the instruction fee to prosecute Land Case No. 18134 of 2024, Tshs 10,000,000/=. Ms Makori prayed that the bill be taxed as per Schedule 9, item 8 of the Advocate Remuneration Order, as the judgment debtor's claim was Tshs Bil 1. Page. 5 Mr Kalaka submitted that the instruction fee of Tshs.10,000,000/= was based on the compensation of 1 billion, but the grant of the compensation is at the discretion of the court. He further submitted that Order 47 of the Advocate Remuneration Order shows that the charges should be according to the work involved and time spent, but the matter was not heard in its finality as it was dismissed; no work was involved. He prays the court to consider taxing the instruction fee. There is no doubt that this application emanates from Land Case No. 18134 of 2024, as it is rightly submitted by both counsel. I also scanned the plaint in the respective suit; the suit was about a land matter valued at Tshs 500,000,000/= where the claim was for a declaratory order. It is also noted that the suit was dismissed for want of prosecution; hence the applicant did not labour time and resources on the same. th The question to be asked is whether the 9 Schedule of the Advocates Remuneration Order, GN No. 263 of 2015 applies where it is a land matter valued at Tshs 500,000,000/=, praying for a declaratory order. There is no dispute that the main suit was a contention matter. But was it for a liquidated sum as required by the 9 Schedule? The liquidated sum th is defined to mean the ascertained amount. It is the amount which is stated, say, in the contract, etc. Thus, the liquidated sum is the amount known, for it is stated in the contract or the amount agreed upon by the parties prior to the filing of the suit. [See the case of Well Worth Hotels & Lodges vs East Canvas Company Ltd & 4 Others, Taxation Reference No. 5 of 2022 HCCD at page 4]. Since there is no agreement by the parties, the 9 Schedule of the Advocates th Remuneration Order, GN No. 263 of 2015 can not apply. The correct rule to be applied in this circumstance then is the Eleventh Schedule, particularly under item 1(d) of the Advocates Remuneration Order, 2015, to mean that where the proceedings are defended, the Taxing Officer shall consider reasonable but not less than1,000,000/=. Page. 6 I agree with Mr Kalaka that this amount is excessive and unreasonable considering that Land Case No. 18134 of 2024 was not complex to render the amount taxed as instruction fees. The matter was concluded at the earliest possible time due to the non-appearance of the plaintiff; and in my view, there was no excessive amount of energy and effort that was involved in the matter to warrant the amount of TZS 10,000,000/=. For the interest of justice, TShs. 5,000,000/= shall suffice, and I proceed to grant Tsh 5,000,000/= as instruction fee to defend the suit. On items 3 to 16 is the attendance fee; it was submitted by Ms Makori that they attended in court for mention, first PTC, Mediation, final PTC and hearing; she prayed that Tshs 100,000/= be taxed as presented for each item as they spent more than 15 minutes. Ms Makori prayed that Tshs 1,400,000/= be taxed accordingly for the above-mentioned items regarding attendance according to the 8th Schedule, item 3(a), ordinary case per 15 minutes Tshs 50,000/=. On the other hand, it was submitted by Mr Kalaka that the law is very clear under the Eighth Schedule; item 3(a) of the Advocate Remuneration order provide Tshs 50,000/= be charged for fifteen minutes. The case was being adjourned, and it had never been heard; it was dismissed for non-appearance of parties. No evidence was adduced; the matter was just adjourned. He stated that Tshs 100,000/= per attendance is not reasonable. It should be understood that there is no scale for hearing or mention. The scale provided is that the cost for attending the court for a hearing for the first 15 minutes is Tshs. 50,000/=. It means if a party attends court either for a hearing or mention and spends not more than 15 minutes, his entitlement is Tzs. 50,000/=. See item 3 (though it is numbered 23) of the Eighth Schedule to the Advocates Remuneration Order. Thus, the determining factor is time spent and not the purpose of attending court. [See Rose Mkeku (the Administratrix of the estate of the late Simon Mkeku ) vs Parvez Shabbirdin (Misc. Application 89 of 2021) [2022] Page. 7 TZHC 3037 (5 May 2022)] I have scanned the court records; it shows that on the 29/09/2024, 28/11/2024; Page. 8 Page. 9 25/02/2025;7/05/2025;02/06/2026;02/07/2025;02/07/2025;18/08/2025;01/10/2025;15/12/2025 and 29/04/2026 the applicant’s advocate appeared in court. The records also show that on 17/06/2025, it does not show whether the applicant’s counsel appeared in court, and on 02/04/2026, the applicant’s counsel was absent with notice. Hence, the record shows that the applicant’s counsel attended 10 times in court with regard to the suit. As it was prayed by the applicant’s counsel that it be charged at Tshs 100,000/= per attendance, as they used more than 15 minutes for every attendance. I am convinced to grant Tshs 100,000/= per attendance, as they used more than 15 minutes. Thus, Tshs 100,000/= times 10 attendances is Tshs 1,000,000/=. I proceed to grant Tshs 1,000,000/= for items 3 to 16. The remaining amount is taxed off. As for attendance in this taxation cause (the application), which is item 17, the records reveal that the parties appeared on 17/07/2026 and 12/08/2026 for this application; thus, they appeared two times. The proceedings took long for 30 minutes. As indicated above, for every 15 minutes, the amount to be charged is Tshs 50,000/=. Thus, Tshs 100,000/= per attendance makes Tshs 200,000/= total. I grant Tshs 200,000/= as an attendance fee for this application. For items 2 and 17 about drawing a written statement of defence, Ms Makori submitted on item 2 that it costs Tshs. 468,000/= as the Written Statement of Defence has 21 folios, where one folio has 100 words, which is charged at Tshs 30,000 per folio, and this is in accordance with Schedule 8 item 2 (a) of the Advocate Remuneration Order, while on item 17 she submitted that the costs include preparation and attendance of the bill of costs; Tshs 1,000,000 is requested. Mr Kalaka prayed the court to be guided by Order 55, item 3; the applicant's learned counsel was supposed to leave it blank for the taxing officer to fill it. He prayed that the amount indicated be disregarded. Being guided by Item 2 (a) of the 8th Schedule of the Advocate Remuneration Order, 2015, it states that costs for drawing are Tshs 30,000/- per folio. I have gone through the court records; the drawn written statement Page. 10 of defence has 2100 words, which is equivalent to 21 folios. As it has stated above, every folio has to be charged at Tshs 30,000/=, thus 630,000/= for 21 folios. I grant Tshs 630,000/= as drawing costs for item 2. For drafting costs under item 17, it is not granted as the applicant did not state the number of folios drawn. Item 18 is the fee for filing a written statement of defence, Tshs 100,000/=. This cost was not objected to by Mr Kalaka. The First Schedule, item 5 of the Court Fee Rules, 2018, provides that the fee for filing a WSD is Tshs 20,00/= and Tshs 20,000/= for every annexed document. I have gone through the WSD by the applicant. It has a preliminary objection and the WSD itself. The receipt also shows that the applicant paid Tshs 100,000. For that reason, I tax Tshs 100,000/= as the costs under item 18. Concerning item 19 on transport costs, Ms Makori did submit that they travelled from Mwanza to Musoma, accommodation, and allowance for an advocate. Mr Kalaka objected to it based on Order 61 (3) of the Advocate Remuneration Order. There was no statement to endorse the amount claimed; the item is so vague. To bolster his argument, he referred to the case of SKEM Real Estate Developers Limited Vs Serengeti Breweries Ltd, Commercial Reference No 17/2022(2023 TZHC), Commercial Division 184 Tanzil, page 13. He prayed that item 19 be disregarded. I have gone through the application; the applicant has annexed a travel allowance form with Tshs 818,000/= total. He has also attached an invoice for car hire from Mwanza to Musoma, Tshs 708,00/=. It has been stated in the case of John Eliafye vs. Michael Lesani Kweka, Taxation Reference No. 12 of 2007, Court of Appeal of Tanzania at Dar es Salaam at page 5, wherein proof by receipt was required to back up transport costs. Page. 11 “…...taking into account the principle that a successful litigant ought to be fairly reimbursed for the costs he has incurred; the applicant has no receipt or document to substantiate the costs he has incurred. How can he be reimbursed at the time when there is no evidence that he has incurred the costs he is claiming?” Based on the above, item 19, I proceed to tax Tshs 1,526,000/= as transport costs. In the upshot, this application is taxed at Tshs. 7,889,000/=. The remaining amount is taxed off. M.O. NDYEKOBORA, TAXING OFFICER 01/09/2026 Right to Reference explained. M.O. NDYEKOBORA, TAXING OFFICER 01/09/2026 The ruling has been delivered this 01st day of September, 2026, in the presence of Ms Rosemary Makori, learned counsel for the applicant and holding brief for Mr Geofrey Kalaka, learned counsel for the respondent. M.O. NDYEKOBORA, TAXING OFFICER 01/09/2026 Dated at MUSOMA this 1st of September 2026 . Page. 12 M. O NDYEKOBORA TAXING OFFICER Page. 13