1. In a judgment delivered on 15 December 2021, the Court dismissed the Cause with costs to the Respondents.
2. The 1st Respondent then caused its Bill of Costs to be taxed on 20 April 2023.
3. The 1st Respondent was not satisfied and it wrote to the Taxing Officer on 28 April 2023, seeking for the reasons for the taxation.
4. The Taxing Officer responded on the same day, and the 1st Respondent filed a Reference on 10 May 2023, contesting the taxation of items numbers 1, 2, 4, 5, 6, 12, 24, 40, 76 and 86 of the Bill of Costs.
5. The grounds in support of the Reference were that the Taxing Officer had made an arithmetical error in adding up the aggregate sum taxed; no reason was assigned for awarding Kshs 120,000/- as instructions fees nor appreciation made to the fact that the value of the subject dispute as pleaded was Kshs 6,731,200/-; the award of getting up fee was, therefore, erroneous and that there was wrong identification of folios perused and in the Statement of Response.
6. The 1st Respondent filed his submissions on 14 June 2023, and the Claimant’s submissions were not on record by this morning.
7. The Court has considered the Reference, affidavit in support and the submissions.
8. In considering the Reference, the Court is alive to the legal principles which governe such applications:
demonstration of error of principle or that the award was manifestly excessive as to draw an inference it was based on error of principle (see First American Bank of Kenya v Shah & Ors (2002) EALR 64.
Instruction fees
9. In the Ruling, the subject of the Reference, the Taxing Officer rendered herself on item 1 (instruction fees):
Item No. 1 on instruction fees is charged in the sum of Kshs 120,000/-, I have taxed off the sum of Kshs 189,624/-.
10. Under Schedule 6 of the Advocates (Remuneration)(Amendment) Order, 2014, some of the factors the Taxing Officer should consider include the value of the subject matter, nature and importance of the matter, general conduct of the proceedings and/or novelty or complexity of the dispute.
11. The Taxing Officer did not give any reasons why the sum of Kshs 189,624/- was taxed off. Equally not disclosed were the factors which were considered in awarding Kshs 120,000/-.
12. Taxing Officers should always endeavour to state in their Rulings the factors considered in taxing-off bills of costs as demanded by the Advocates (Remuneration)(Amendment) Order, 2014, otherwise it would be impossible to ascertain whether the taxation jurisdiction was exercised judiciously.
13. Without a disclosure of the reasons or factors considered, the Court finds that the Taxing Officer fell into an error of principle.
Getting up fees
14. Getting up fees is contingent on the instructions fees allowed. The Taxing Officer herein fell in error of principle in not disclosing the factors considered in taxing the instructions fees and consequently, the getting up fees allowed cannot be sustained.
Perusals/drawings
15. Items 3, 4, 5, 6, 12, 24, 40, 76 and 86 of the Bill of Costs concerned either perusals or drawings and taxation should have been based on the folios.
16. The 1st Respondent asserted that the Taxing Officer did not count the folios correctly and thus erred in the awards allowed.
17. The Claimant did not file an affidavit to controvert the 1st Respondent’s assertions that the Taxing Officer did not count the folios correctly and the Court, therefore will allow this ground of the Reference as well.
18. The Court is, therefore, of the view that the Reference has merit.
Conclusion and Orders
19. The Reference succeeds, and the Court orders that:
(i) The Taxation Ruling dated 20 April 2023 is hereby set aside.
(ii) The 1st Respondent’s Bill of Costs to be placed the Taxing Officer for fresh taxation.
20. Costs in the cause.