[1955] EACA 178

## APPELLATE CIVIL

### Before WINDHAM, J.

# BLOCK ESTATES LIMITED, Objector ν

## ISMAIL JAN MOHAMED. Respondent

### Reference in Civil Appeal No. 10 of 1955

Taxation—Rules of Court, Part XIV, rule 7 (1)—Objection to decision of taxing officer-High Instruction fee-Principles upon which Court will interfere with decision as to quantum-Whether taxing officer had manifestly acted upon wrong principles.

A first appeal under a new Ordinance had caused the appellant's advocate considerable preparation on intricate and novel points of law, and was successful. The appellant submitted an instruction fee of Sh. 7,500 but the taxing officer taxed off Sh. 3,250. The respondent objected to the taxed figure of Sh. 4,250 as still excessively high and referred his objection before a judge as provided for by rule 7 (1) of Part XIV, Rules of Court.

Held (5-8-55).-(1) The Court will not interfere with the discretion of a taxing officer on a question of *quantum* unless it appears that the sum allowed is so large, having regard to the nature of the proceeding, that the Court is driven to the conclusion that the taxing officer must have acted upon a wrong principle. The Court will not interfere unless in an exceptional case.

(2) Merely because an instruction fee is taxed at a figure which appears to be extremely high and far higher than the Court itself would have allowed the Court will not automatically presume that the figure was arrived at upon wrong principles where there is nothing to show that this was so.

(3) The taxing officer was well aware of the nature of the appeal from the record and the arguments presented to him and had a discretion to take into account the<br>"nature and importance of the cause or matter" and there was nothing to show and the Court was unable to say that the taxing officer had manifestly acted upon wrong principles in allowing so high a fee and would therefore not interfere.

Reference dismissed with costs.

Cases cited: Mohanlal Kalyanjee v. M. M. Stores, (1950) 24 (1) K. L. R. 47.

Couldrey for objector.

Nowrojee for respondent.

ORDER.—This matter comes before me on appeal, by way of an objection, under rule 7 of Part XIV of the Rules of Court to the sum allowed by the taxing officer for an item "Instructions to Appeal" in a bill of costs. The figure as submitted in the bill of costs was the extremely high one of Sh. 7,500, and the taxing officer taxed off Sh. 3,250 from it, leaving the sum of Sh. 4,250.

Now the principles on which this Court will act in deciding whether or not to interfere with the *quantum* of an item allowed by the taxing officer in a bill of costs have been stated on many occasions in reported and unreported judgments of this Court, and it is unnecessary to do more than quote the following passage from the judgment of Sir Barclay Nihill, C. J., in Mohanlal Kalyanjee v. M. M. Stores, (1950) 24 K. L. R., Part 1, page 47, where the principles are epitomized thus: "This Court will not interfere on questions of *quantum* where the registrar

has a discretion unless it appears to the Court that the sum allowed is so large. having regard to the nature of the suit or proceeding, that the Court is driven to the conclusion that the taxing officer must have acted upon a wrong principle. It will, however, require an exceptional case to call for the interference of the Court".

In the case before me, the figure allowed for the instruction fee in the appeal, namely Sh. 4,250 is a most unusually high one. At the same time from a perusal of the record, it appears that the appeal involved the determination of points never before determined in the courts of Kenya, for it was the first appeal to be heard under the Landlord and Tenant (Shops and Hotels) (Temporary Provisions) Ordinance, 1954. The magistrate had under that Ordinance granted to the appellant tenant a new tenancy for a limited period of 14 months at a monthly rent of £100 per month, and the appeal was in respect of both the period and the amount of rent so fixed. The arguments before this Court on appeal took a full day and a half, and the points raised in the memorandum of appeal and in argument were concerned with the general objects of the new Ordinance, and with the question what matters ought, and what matters ought not, to be taken into consideration by a magistrate in making an order under it, both in relation to the period of the lease and to the amount of monthly rent. All these points were novel ones, and of considerable public interest inasmuch as the Court was being asked, in effect, to lay down general principles for the guidance of magistrates in deciding whether, and upon what terms, to grant new tenancies under the new Ordinance. The preparation of the appeal must have entailed no little labour, and it resulted in the delivery of a judgment of wide scope running to 34 pages of typescript.

Even taking all these factors into consideration, the instruction fee of Sh. 4,250 appears to be extremely high, and it would be easy, and perhaps tempting, to hold that it is so high that the taxing officer must be presumed to have been acting upon wrong principles in arriving at it. But it would not be right for this Court, in every case where an instruction fee appears excessively high, to seek a means of procuring its reduction by presuming that it must have been arrived at upon wrong principles. The presumption is no legal fiction, and is not to be made automatically whenever a fee allowed appears to be unduly high. The fee may be far higher than this Court itself would have allowed, and yet there may be nothing to show that it was arrived at upon wrong principles. Such is the position in the present case. In view of the nature of the appeal, of which the taxing officer was well aware both from the record itself and the arguments presented to him, and bearing in mind that a taxing officer, in exercising his discretion, shall take into consideration (inter alia) "the nature and importance of the cause or matter", I am unable to say that the taxing officer has manifestly acted upon wrong principles in allowing so high an instruction fee.

This appeal must therefore be dismissed with costs.