1. By Chamber Summons dated 8th October 2024 brought under the provisions of Rule 11 of the Advocates Remuneration Order, the applicant seeks for review, variation and /or setting aside of the Orders made by the Learned Deputy Registrar in a ruling delivered on 17th September 2024 on the taxation of the bill of costs dated 26th April 2022. The applicant prays in the alternative that the respondents Bill of Cost be remitted back for taxation before another Taxing Officer.
2. The applicant challenged the ruling of the Taxing officer on the grounds that the learned deputy registrar erred in law by awarding instructions fee that was too high yet the value of the subject matter could not be determined by any pleadings. Further that the deputy registrar erred by failing to apply the provisions of the 6th Schedule part 1 (j) of the ARO on appeals.
3. The application is supported by Dominic Njuguna Mbigi’s affidavit sworn on 8th October 2024.
4. In the ruling of the Taxing officer dated 17th September 2024, the learned magistrate taxed the party and party bill in the total sum of 109,165 with the instruction fees being assessed and taxed at 90,000. The applicant grievance is on the instruction fee only contending that the same is too high.
5. It is the applicant submission that the Deputy registrar erred in law by awarding instruction fee yet the value of the subject matter of litigation had not been determined by way of pleadings for appeal purposes. According to the applicant the subject matter of the appeal was “dismissal of an application” which in its view, was not provided for in the Advocate Remuneration Order. Secondly, the applicant argues that the Deputy registrar failed to apply the Correct provision governing costs for appeals where the value was unascertainable. That since the appeal was struck out at the preliminary stage, the value should have been treated as unascertainable and therefore the provisions for appeals not expressly provided for should have been applied. Counsel for the applicant referred to the case of Joreth Ltd vs Kigano & Associates (2002) eklr for the holding that where the subject matter is not ascertainable from the pleadings, judgement, or settlement, the taxing officer must exercise discretion guided by the nature and importance of the cause and the work done to determine what would be reasonable instruction fees.
6. The applicant submits that the correct applicable law for taxation of this matter is the schedule 6-part A under the subheading “Appeals”. According to the applicant the subject matter of the appeal was dismissal of an application and the fee in appeal against the dismissal of application is not specifically provided for by Advocate Remuneration Order. It is contended that the schedule applicable where the value cannot be ascertained is 6 Part A under the Sub heading “appeals” to wit “to present or oppose an appeal in any case not provided for above; such as may be reasonable but not less than Ksh. 25,200. It is urged that once the Deputy registrar determined that the Instruction fee was not drawn to scale, then te matter ought to fall under the schedule referred to by counsel
7. The respondent submits relying on the case of Joreth Limited vs Kigano & Associates supra and Peter Muthoka & Another vs Ochieng & 3 others (2019) eklr that the value of the subject matter is determined from the pleadings, judgement or settlement if such be the case. It is the respondent contention that the award of costs emanated from the applicant dismissed appeal against decision in CMCC NO 63 of 2020 as indicated in the applicant Memorandum of Appeal where the applicant challenged the decree issued in favour of the respondent which was assessed and taxed at ksh 575,482.55.
8. I have considered the submissions and the authorities supplied by both counsel in this matter.
9. The principles on setting aside taxed costs are that a court cannot interfere with the decision of the taxing officer unless it be shown that the decision was based on error of principle, or the fee awarded was manifestly high as to justify interference. In First American Bank of Kenya vs Shah & others (2002) eklr the court stated as follows;
“ first, I find that on authorities, this court cannot interfere with the taxing officers decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was manifestly excessive as to justify an inference that it was based on an error of principle.”
10. This principle was reiterated by the court of appeal in Joreth Ltd case referred to by parties.
11. The applicant filed an appeal against the decision of the chief Magistrate in civil case No 63 of 2020 which had dismissed the applicant application dated 18th October 2021. The applicant had sought to set aside the decree on taxed cost dated 14th July 2021.The appeal came a cropper because this court vide ruling dated 14th march 2022, and on an application by the respondent struck out the appeal with cost.
12. It is clear therefore that the applicant appeal was against the judgement and /or decree of the Magistrate court dated 14th July 2021.The decree was for an amount of Ksh 575,482.55. Schedule 6(1) (b) of the Advocate Remuneration Order provides for calculation of fees for appeal where deny of liability is filed. It reads “To sue in any proceedings described in paragraph (a) where a defence or other denial of liability is filed; or to have an issue determined arising out of an interpleader or other proceedings before or after suit; or oppose an appeal where the value of the subject matter can be determined from pleadings, judgement or settlement between the parties…”
13. I agree with counsel for the respondent that the value of the subject matter in this case was ascertainable from the decree of the magistrate court dated 14th July 2021. It is not the case as argued by the applicant that the subject matter is incapable of ascertainment. It is also clear that counsel for the applicant misapprehended the Deputy registrar finding that the “Instruction fees is not drawn to scale” to mean that the subject matter is not ascertainable. What the court meant in my understanding was that the amount of Ksh.180,000/ proposed instruction fee sought by the respondent in the bill of cost do not comply with the rates schedule as provided for in Schedule 6 (1) (b).
14. In the end I am unable to fault the Learned Deputy registrar decision dated 17th September 2024. Consequently, the Chamber Summons application dated 8th October 2024 is hereby dismissed with cost.
2. The applicant challenged the ruling of the Taxing officer on the grounds that the learned deputy registrar erred in law by awarding instructions fee that was too high yet the value of the subject matter could not be determined by any pleadings. Further that the deputy registrar erred by failing to apply the provisions of the 6th Schedule part 1 (j) of the ARO on appeals.
3. The application is supported by Dominic Njuguna Mbigi’s affidavit sworn on 8th October 2024.
4. In the ruling of the Taxing officer dated 17th September 2024, the learned magistrate taxed the party and party bill in the total sum of 109,165 with the instruction fees being assessed and taxed at 90,000. The applicant grievance is on the instruction fee only contending that the same is too high.
5. It is the applicant submission that the Deputy registrar erred in law by awarding instruction fee yet the value of the subject matter of litigation had not been determined by way of pleadings for appeal purposes. According to the applicant the subject matter of the appeal was “dismissal of an application” which in its view, was not provided for in the Advocate Remuneration Order. Secondly, the applicant argues that the Deputy registrar failed to apply the Correct provision governing costs for appeals where the value was unascertainable. That since the appeal was struck out at the preliminary stage, the value should have been treated as unascertainable and therefore the provisions for appeals not expressly provided for should have been applied. Counsel for the applicant referred to the case of Joreth Ltd vs Kigano & Associates (2002) eklr for the holding that where the subject matter is not ascertainable from the pleadings, judgement, or settlement, the taxing officer must exercise discretion guided by the nature and importance of the cause and the work done to determine what would be reasonable instruction fees.
6. The applicant submits that the correct applicable law for taxation of this matter is the schedule 6-part A under the subheading “Appeals”. According to the applicant the subject matter of the appeal was dismissal of an application and the fee in appeal against the dismissal of application is not specifically provided for by Advocate Remuneration Order. It is contended that the schedule applicable where the value cannot be ascertained is 6 Part A under the Sub heading “appeals” to wit “to present or oppose an appeal in any case not provided for above; such as may be reasonable but not less than Ksh. 25,200. It is urged that once the Deputy registrar determined that the Instruction fee was not drawn to scale, then te matter ought to fall under the schedule referred to by counsel
7. The respondent submits relying on the case of Joreth Limited vs Kigano & Associates supra and Peter Muthoka & Another vs Ochieng & 3 others (2019) eklr that the value of the subject matter is determined from the pleadings, judgement or settlement if such be the case. It is the respondent contention that the award of costs emanated from the applicant dismissed appeal against decision in CMCC NO 63 of 2020 as indicated in the applicant Memorandum of Appeal where the applicant challenged the decree issued in favour of the respondent which was assessed and taxed at ksh 575,482.55.
8. I have considered the submissions and the authorities supplied by both counsel in this matter.
9. The principles on setting aside taxed costs are that a court cannot interfere with the decision of the taxing officer unless it be shown that the decision was based on error of principle, or the fee awarded was manifestly high as to justify interference. In First American Bank of Kenya vs Shah & others (2002) eklr the court stated as follows;
“ first, I find that on authorities, this court cannot interfere with the taxing officers decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was manifestly excessive as to justify an inference that it was based on an error of principle.”
10. This principle was reiterated by the court of appeal in Joreth Ltd case referred to by parties.
11. The applicant filed an appeal against the decision of the chief Magistrate in civil case No 63 of 2020 which had dismissed the applicant application dated 18th October 2021. The applicant had sought to set aside the decree on taxed cost dated 14th July 2021.The appeal came a cropper because this court vide ruling dated 14th march 2022, and on an application by the respondent struck out the appeal with cost.
12. It is clear therefore that the applicant appeal was against the judgement and /or decree of the Magistrate court dated 14th July 2021.The decree was for an amount of Ksh 575,482.55. Schedule 6(1) (b) of the Advocate Remuneration Order provides for calculation of fees for appeal where deny of liability is filed. It reads “To sue in any proceedings described in paragraph (a) where a defence or other denial of liability is filed; or to have an issue determined arising out of an interpleader or other proceedings before or after suit; or oppose an appeal where the value of the subject matter can be determined from pleadings, judgement or settlement between the parties…”
13. I agree with counsel for the respondent that the value of the subject matter in this case was ascertainable from the decree of the magistrate court dated 14th July 2021. It is not the case as argued by the applicant that the subject matter is incapable of ascertainment. It is also clear that counsel for the applicant misapprehended the Deputy registrar finding that the “Instruction fees is not drawn to scale” to mean that the subject matter is not ascertainable. What the court meant in my understanding was that the amount of Ksh.180,000/ proposed instruction fee sought by the respondent in the bill of cost do not comply with the rates schedule as provided for in Schedule 6 (1) (b).
14. In the end I am unable to fault the Learned Deputy registrar decision dated 17th September 2024. Consequently, the Chamber Summons application dated 8th October 2024 is hereby dismissed with cost.