1.The 2nd Defendant/Applicant filed the Chamber Summons application dated 13th December 2023 seeking the following orders:
1)THAT this Honourable Court be pleased to set aside and/or review the taxing master’s findings on the question of instruction fees and getting up fees as set out in her Ruling delivered on 22nd November 2023.
2)THAT the costs of this application be provided for.
2.The application is supported by the affidavit of the 2nd defendant/Applicant and the grounds set out on the face of the application.
3.The Applicant states that he filed the Party and Party Bill of Costs dated 12th June 2023 against the 1st Defendant claiming a total sum of Ksh.3,325,342,00 including a claim for instruction fees of Kshs. 192,000. The said bill was on 22nd November 2023 taxed at Ksh. 324,249.
4.Aggrieved by the decision of the taxing master, the Applicant filed the present application deposing that the taxing master misdirected herself when she failed to consider their submissions in support of the item on instruction fees and the valuation carried out on the suit property.
5.The Applicant submitted that the Taxing Master ought to have considered the set principles in taxing the instruction fees and in particular that instruction fees are meant to be based on the claims made at the inception of the matter and the developments of residential houses on the land. That consideration was to be given for defending the plaintiff’s claim for loss of user running into tens of millions of shillings, the value of the initial claim and not the outcome of the case.
6.The Applicant claims that it is in the interest of justice that the decision of the taxing master be set aside and/or reviewed especially on the question of instruction fees.
7.The Applicant relied on the grounds stated in the Application and the supporting affidavit in place of filing submissions and held the position that the award of the Taxing Master was excessive and ought to be reviewed. The 1st defendant did not respond to the application.
8.It is noted that the 1st Defendant/Respondent did not file any documents in reply to the application nor did they file any submissions as directed by the Court on 17th July 2024.
Analysis and Determination
9.The judgement of this court dated 16th February 2023, ordered inter alia that the Plaintiff\'s suit against the 2nd Defendant be dismissed with the costs of the 2nd Defendant to be paid by the 1st Defendant. The 2nd Defendant filed the Party and Party Bill of Costs dated 12th June 2023 claiming the sum of Ksh.3,325,342,00.
10.The Bill of costs was taxed at Kshs 301,670 and a certificate of taxation dated 1st December 2023 was issued. The 2nd defendant filed a notice of objection to the decision on taxation dated 5th December 2023. His contention in this application is that the instruction fee awarded as well as the getting up fee were low and the taxing master failed to take into consideration relevant factors in arriving at the sums awarded.
11.The 2nd defendant contended that the instruction fees should have been based on the Plaintiff’s initial claim and not the sum awarded in the judgment which amounted to a total sum of Ksh.4,600,000/=. The initial claim in the Plaint was an order for compensation of the two plots at market rates, payment of loss of user from 1st June 2012 until the date of delivery of vacant possession and general damages.
12.The Applicant contends that instruction fees are earned at the time of instructions and that for a Defendant the same ought to be assessed based on what is demanded and not the final judgment. He claimed that he defended the claim for loss of user that ran into enormous amounts of Ksh.35,840,000. He further claimed that Plaintiff had averred in his plaint that he had approved plans for rental income which could fetch a monthly rent of Ksh.280,000/=.
13.The court has considered the application herein and submissions in support. Schedule 6 (1) (b) of the Advocates (Remuneration) (Amendment) Order, 2014 provides that;
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 inter-pleader or other proceedings before or after suit; or to present or oppose an appeal where the value of the subject matter can be determined from the pleadings, judgment or settlement between the parties and—
That value exceeds But does not exceed
Kshs. Kshs. Kshs.
- 500,000 75,000
500,000 750,000 90,000
750,000 1,000,000 120,000
1,000,000 20,000,000 fees as for Kshs.1,000,000 plus an additional 2%. Over 20,000,000 Fees as for 20,000,000 plus an additional 1.5%
14.In the case of Joreth Ltd v Kigano & Associates [2002] eKLR in determining the issue of instruction fees, the court stated as follows:
“We would at this stage point out that the value of the subject matter of a suit for the purpose of taxation of a bill of costs ought to be determined from the pleadings, judgment or settlement (if such be the case) but if the same is not ascertainable, the taxing officer is entitled to use his discretion to assess such instruction fee as he considers just, taking into account, among other matters, the nature and importance of the cause or matter, the interest of the parties, the general conduct of the proceedings, any direction by the trial judge and all other relevant circumstances.”
15. The Applicant argues that instructions fees ought to be assessed based on the claim made at the inception of the suit and take into account that the 2nd Defendant paid legal fees based on the claim in the plaint and on the further claim made during the trial.
16.However, the Court of Appeal in the case of Peter Muthoka & another v Ochieng & 3 others [2019] eKLR;
“It seems to us quite plain that the basis for determining subject matter value for purposes of instruction fees is wholly dependent on the stage at which the fees are being taxed. Where it happens before judgment, it is the pleadings that form the basis for determining subject value. Once judgment has been entered, and for what seems to us to be an obvious reason, recourse will not be had to the pleadings since the judgment does determine conclusively the value of the subject matter as a claim, no matter how pleaded, gets its true value as adjudged by the court. Where, however, a suit is settled, then, from a literal and practical reading of the provision, the subject matter value must be sought by reference, in the first instance, to the terms of the settlement. Just as one would not start with the pleadings in the face of a judgment, it is indubitable that one cannot start with the pleadings where there is a settlement. It is only where the value of the subject matter is neither discernible nor determinable from the pleadings, the judgment or the settlement, as the case may be, that the taxing officer is permitted to use his discretion to assess instructions fees in accordance with what he considers just bearing in mind the various elements contained in the provision we are addressing. He does have discretion as to what he considers just but that discretion kicks in only after he has engaged with the proper basis as expressly and mandatorily provided: either the pleadings, the judgment or the settlement.”
17.From the above binding decision of the Court of Appeal, the correct position of the law is that the assessment of instruction fees is based on the judgment delivered by the court and not the claim in the plaint.
18. The Court has taken into account that the total sum awarded to the Plaintiff was Ksh.4,600,000/=, and finds and holds that under the provisions of the Advocates Remuneration Order 2014 Schedule 6 (1) (b), the instruction fees of Ksh 192,000/= awarded by the Deputy Registrar was the correct amount.
19.On the claim that the getting up fees awarded was low, the court has considered the provisions of Schedule 6 (2) of the Advocates Remuneration Order on fees for getting up or preparing for trial which provides that ;
In any case in which a denial of liability is filed or in which issues for trial are joined by the pleadings, a fee for getting up and preparing the case for trial shall be allowed in addition to the instruction fee and shall be not less than one-third of the instruction fee allowed on taxation: Provided that—
(i)this fee may be increased as the taxation officer considers reasonable but it does not include any work comprised in the instruction fee;
(ii)no fee under this paragraph is chargeable until the case has been confirmed for hearing, but an additional sum of not more than 15% of the instruction fee allowed on taxation may, if the judge so directs, be allowed against the party seeking the adjournment in respect of each occasion upon which a confirmed hearing is adjourned;
(iii) in every case which is not heard the taxing officer must be satisfied that the case has been prepared for trial under this paragraph
20.From the foregoing, the getting up fees is a third of instruction fees, which in this case amounts to Ksh.64,000/= In the Court’s view the Taxing Mater did not err in principle or in the mathematical calculations and the court found no reason to interfere with the decision arrived at.
21.As it was held by the Court of Appeal of Uganda in the case of China Forestry International Development Co. Limited v China Shandong Hi-Speed Uganda Limited (Miscellaneous Application 2935 of 2023) [2024] UGCommC 93 (30 April 2024) that:
“The circumstances in which a Judge of the High Court may interfere with the Taxing Officer’s exercise of discretion in awarding costs have been stated in Thomas James Arthur v. Nyeri Electricity Undertaking, [1961] EA 492; Bank of Uganda v. Banco Arabe Espanol, S.C. Civil Application No. 23 of 1999; [1999] EA 45; Steel construction and Petroleum Engineering (EA) Ltd v. Uganda Sugar Factory Limited [1970] EA 141; Kabanda v. Kananura Melvin Consulting Engineers, S. C. Civil Application No. 24 of 1993 and Makumbi and another v. Sole Electrics (U) Ltd [1990-1994] 1 EA 306, and generally are that;
i.Where there has been an error in principle the court will interfere, but questions solely of quantum are regarded as matters which taxing Officers are particularly fitted to deal with and the court will intervene only in exceptional circumstances.
ii.Where the fee allowed is higher than seems appropriate, and is so manifestly excessive as to justify treating it as indicative of the exercise of a wrong principle.”
22.Similarly, in our own Kenyan context, the learned Judges Supreme Court in the case of Non- Non-Governmental Organizations Coordination Board v EG & 5 others (Petition (Application) 16 of 2019) [2023] KESC 102 (KLR) (Civ) (8 December 2023) (Ruling) held as follows:
“Unless the taxing officer improperly exercises his discretion or applies the wrong principles or the quantum awarded is obviously wrong, the single Judge ought not to interfere with the decision of the taxing officer on the mere question of quantum, or merely because the single judge would have awarded a different figure had he been the taxing officer.”
23.For the foregoing reasons, the court finds no reason to interfere with the discretion of the taxing master which was in any event exercised in accordance with the law. The court thus finds that the Taxing Master did not err in taxing the 2nd Defendant’s bill of costs dated 13th December 2023 and awarding him the sum of Kshs. 301,670/=.
24. The application dated 13th December 2023 is hereby dismissed with no order as to costs.
Dated, Signed and Delivered at Kitui this 17th Day of October 2024
L. G. KIMANI
JUDGE
Ruling read virtually in the presence of
Kiama holding brief for Mwalimu for the Applicant
No attendance for the Respondent
1)THAT this Honourable Court be pleased to set aside and/or review the taxing master’s findings on the question of instruction fees and getting up fees as set out in her Ruling delivered on 22nd November 2023.
2)THAT the costs of this application be provided for.
2.The application is supported by the affidavit of the 2nd defendant/Applicant and the grounds set out on the face of the application.
3.The Applicant states that he filed the Party and Party Bill of Costs dated 12th June 2023 against the 1st Defendant claiming a total sum of Ksh.3,325,342,00 including a claim for instruction fees of Kshs. 192,000. The said bill was on 22nd November 2023 taxed at Ksh. 324,249.
4.Aggrieved by the decision of the taxing master, the Applicant filed the present application deposing that the taxing master misdirected herself when she failed to consider their submissions in support of the item on instruction fees and the valuation carried out on the suit property.
5.The Applicant submitted that the Taxing Master ought to have considered the set principles in taxing the instruction fees and in particular that instruction fees are meant to be based on the claims made at the inception of the matter and the developments of residential houses on the land. That consideration was to be given for defending the plaintiff’s claim for loss of user running into tens of millions of shillings, the value of the initial claim and not the outcome of the case.
6.The Applicant claims that it is in the interest of justice that the decision of the taxing master be set aside and/or reviewed especially on the question of instruction fees.
7.The Applicant relied on the grounds stated in the Application and the supporting affidavit in place of filing submissions and held the position that the award of the Taxing Master was excessive and ought to be reviewed. The 1st defendant did not respond to the application.
8.It is noted that the 1st Defendant/Respondent did not file any documents in reply to the application nor did they file any submissions as directed by the Court on 17th July 2024.
Analysis and Determination
9.The judgement of this court dated 16th February 2023, ordered inter alia that the Plaintiff\'s suit against the 2nd Defendant be dismissed with the costs of the 2nd Defendant to be paid by the 1st Defendant. The 2nd Defendant filed the Party and Party Bill of Costs dated 12th June 2023 claiming the sum of Ksh.3,325,342,00.
10.The Bill of costs was taxed at Kshs 301,670 and a certificate of taxation dated 1st December 2023 was issued. The 2nd defendant filed a notice of objection to the decision on taxation dated 5th December 2023. His contention in this application is that the instruction fee awarded as well as the getting up fee were low and the taxing master failed to take into consideration relevant factors in arriving at the sums awarded.
11.The 2nd defendant contended that the instruction fees should have been based on the Plaintiff’s initial claim and not the sum awarded in the judgment which amounted to a total sum of Ksh.4,600,000/=. The initial claim in the Plaint was an order for compensation of the two plots at market rates, payment of loss of user from 1st June 2012 until the date of delivery of vacant possession and general damages.
12.The Applicant contends that instruction fees are earned at the time of instructions and that for a Defendant the same ought to be assessed based on what is demanded and not the final judgment. He claimed that he defended the claim for loss of user that ran into enormous amounts of Ksh.35,840,000. He further claimed that Plaintiff had averred in his plaint that he had approved plans for rental income which could fetch a monthly rent of Ksh.280,000/=.
13.The court has considered the application herein and submissions in support. Schedule 6 (1) (b) of the Advocates (Remuneration) (Amendment) Order, 2014 provides that;
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 inter-pleader or other proceedings before or after suit; or to present or oppose an appeal where the value of the subject matter can be determined from the pleadings, judgment or settlement between the parties and—
That value exceeds But does not exceed
Kshs. Kshs. Kshs.
- 500,000 75,000
500,000 750,000 90,000
750,000 1,000,000 120,000
1,000,000 20,000,000 fees as for Kshs.1,000,000 plus an additional 2%. Over 20,000,000 Fees as for 20,000,000 plus an additional 1.5%
14.In the case of Joreth Ltd v Kigano & Associates [2002] eKLR in determining the issue of instruction fees, the court stated as follows:
“We would at this stage point out that the value of the subject matter of a suit for the purpose of taxation of a bill of costs ought to be determined from the pleadings, judgment or settlement (if such be the case) but if the same is not ascertainable, the taxing officer is entitled to use his discretion to assess such instruction fee as he considers just, taking into account, among other matters, the nature and importance of the cause or matter, the interest of the parties, the general conduct of the proceedings, any direction by the trial judge and all other relevant circumstances.”
15. The Applicant argues that instructions fees ought to be assessed based on the claim made at the inception of the suit and take into account that the 2nd Defendant paid legal fees based on the claim in the plaint and on the further claim made during the trial.
16.However, the Court of Appeal in the case of Peter Muthoka & another v Ochieng & 3 others [2019] eKLR;
“It seems to us quite plain that the basis for determining subject matter value for purposes of instruction fees is wholly dependent on the stage at which the fees are being taxed. Where it happens before judgment, it is the pleadings that form the basis for determining subject value. Once judgment has been entered, and for what seems to us to be an obvious reason, recourse will not be had to the pleadings since the judgment does determine conclusively the value of the subject matter as a claim, no matter how pleaded, gets its true value as adjudged by the court. Where, however, a suit is settled, then, from a literal and practical reading of the provision, the subject matter value must be sought by reference, in the first instance, to the terms of the settlement. Just as one would not start with the pleadings in the face of a judgment, it is indubitable that one cannot start with the pleadings where there is a settlement. It is only where the value of the subject matter is neither discernible nor determinable from the pleadings, the judgment or the settlement, as the case may be, that the taxing officer is permitted to use his discretion to assess instructions fees in accordance with what he considers just bearing in mind the various elements contained in the provision we are addressing. He does have discretion as to what he considers just but that discretion kicks in only after he has engaged with the proper basis as expressly and mandatorily provided: either the pleadings, the judgment or the settlement.”
17.From the above binding decision of the Court of Appeal, the correct position of the law is that the assessment of instruction fees is based on the judgment delivered by the court and not the claim in the plaint.
18. The Court has taken into account that the total sum awarded to the Plaintiff was Ksh.4,600,000/=, and finds and holds that under the provisions of the Advocates Remuneration Order 2014 Schedule 6 (1) (b), the instruction fees of Ksh 192,000/= awarded by the Deputy Registrar was the correct amount.
19.On the claim that the getting up fees awarded was low, the court has considered the provisions of Schedule 6 (2) of the Advocates Remuneration Order on fees for getting up or preparing for trial which provides that ;
In any case in which a denial of liability is filed or in which issues for trial are joined by the pleadings, a fee for getting up and preparing the case for trial shall be allowed in addition to the instruction fee and shall be not less than one-third of the instruction fee allowed on taxation: Provided that—
(i)this fee may be increased as the taxation officer considers reasonable but it does not include any work comprised in the instruction fee;
(ii)no fee under this paragraph is chargeable until the case has been confirmed for hearing, but an additional sum of not more than 15% of the instruction fee allowed on taxation may, if the judge so directs, be allowed against the party seeking the adjournment in respect of each occasion upon which a confirmed hearing is adjourned;
(iii) in every case which is not heard the taxing officer must be satisfied that the case has been prepared for trial under this paragraph
20.From the foregoing, the getting up fees is a third of instruction fees, which in this case amounts to Ksh.64,000/= In the Court’s view the Taxing Mater did not err in principle or in the mathematical calculations and the court found no reason to interfere with the decision arrived at.
21.As it was held by the Court of Appeal of Uganda in the case of China Forestry International Development Co. Limited v China Shandong Hi-Speed Uganda Limited (Miscellaneous Application 2935 of 2023) [2024] UGCommC 93 (30 April 2024) that:
“The circumstances in which a Judge of the High Court may interfere with the Taxing Officer’s exercise of discretion in awarding costs have been stated in Thomas James Arthur v. Nyeri Electricity Undertaking, [1961] EA 492; Bank of Uganda v. Banco Arabe Espanol, S.C. Civil Application No. 23 of 1999; [1999] EA 45; Steel construction and Petroleum Engineering (EA) Ltd v. Uganda Sugar Factory Limited [1970] EA 141; Kabanda v. Kananura Melvin Consulting Engineers, S. C. Civil Application No. 24 of 1993 and Makumbi and another v. Sole Electrics (U) Ltd [1990-1994] 1 EA 306, and generally are that;
i.Where there has been an error in principle the court will interfere, but questions solely of quantum are regarded as matters which taxing Officers are particularly fitted to deal with and the court will intervene only in exceptional circumstances.
ii.Where the fee allowed is higher than seems appropriate, and is so manifestly excessive as to justify treating it as indicative of the exercise of a wrong principle.”
22.Similarly, in our own Kenyan context, the learned Judges Supreme Court in the case of Non- Non-Governmental Organizations Coordination Board v EG & 5 others (Petition (Application) 16 of 2019) [2023] KESC 102 (KLR) (Civ) (8 December 2023) (Ruling) held as follows:
“Unless the taxing officer improperly exercises his discretion or applies the wrong principles or the quantum awarded is obviously wrong, the single Judge ought not to interfere with the decision of the taxing officer on the mere question of quantum, or merely because the single judge would have awarded a different figure had he been the taxing officer.”
23.For the foregoing reasons, the court finds no reason to interfere with the discretion of the taxing master which was in any event exercised in accordance with the law. The court thus finds that the Taxing Master did not err in taxing the 2nd Defendant’s bill of costs dated 13th December 2023 and awarding him the sum of Kshs. 301,670/=.
24. The application dated 13th December 2023 is hereby dismissed with no order as to costs.
Dated, Signed and Delivered at Kitui this 17th Day of October 2024
L. G. KIMANI
JUDGE
Ruling read virtually in the presence of
Kiama holding brief for Mwalimu for the Applicant
No attendance for the Respondent