MISCELLANEOUS CIVIL CASE 46B OF 2023
HAMILTON HARRISON & MATHEWS……………...…..APPLICANT
VERSUS
WAINAINA ANTHONY NJOROGE…………………….RESPONDENT
JUDGEMENT
- Before this court is the Chamber Summons dated 15th April 2024 filed by the Advocate/Applicant HAMILTON HARRISON & MATHEWS seeking the following orders:-
“1. THAT the Court be pleased to review and/or set aside the assessment of the Taxing Officer on item Number 1, 73 and 102 with respect to the Advocate – client Bill of costs dated 11th April 2023.
2. THAT the court be pleased to retax the items at such sum as it deem reasonable and just.
3. THAT in the alternative the court be pleased to remit the advocate-client Bill of Costs dated 11th April 2023 to be taxed afresh by a different taxing officer other than Hon. E. M. Gaithuma.
4. THAT the costs of this application be provided for.”
2. The Reference which was premised upon Rule 11(2) of the Advocates (Remuneration) Order, was supported by the Affidavit of even date sworn by SUSAN NJERI MWANGI an associate Advocate in the Applicant Law Firm.
3. The Respondent/client HON. WAINAINA ANTHONY NJOROGE opposed the application through the Replying Affidavit dated 27th May 2024.
4. The matter was canvassed by way of written submissions. The Applicant filed the written submissions dated 24th July 2024 whilst the Respondent relied on their written submissions dated 28th June, 2024.
BACKGROUND
5. This reference arises from the Advocate/client Bill of Costs dated 11th April 2023 filed by the Applicant claiming Kshs. 3,295,972/= for representing the Respondent in an Election Petition No. E001 of 2022. The matter was heard in the lower court and the Taxing Officer taxed the Bill as follows;-
(a) Instruction Fees………………… Kshs. 1,350,000.00
(b) Add items 2, 72 and 74 to 94 ………Kshs. 120,912.00
(c) Add VAT (16%)………………………… Kshs. 235,345.92
(d) Dusbursements……………………… Kshs. 695.00
(e) Total Kshs. 1,706,932.92
(f) Less paid……………………………… Kshs. 1,250,000.00
(g) Net total…………………………………… Kshs. 456,932.00
6. Being aggrieved the Applicant filed this reference. The Applicant submits that the Taxing Master erred in principle in her assessment of the instruction fees. That the Applicants proposal of Kshs. 2,500,000/= as instruction fees was commensurate to the work done and was more appropriate assessment.
7. The Applicant was also aggrieved by the decision of the Taxing Master to tax off item No. 73 of Kshs. 20,000 charged for an application as well as item No. 102 of Kshs. 200 for the Commissioner of Oaths.
8. On their part the Respondent submitted that the taxing master correctly assessed the instruction fees at Kshs. 1,250,000. Further that the decision to tax off items Nos 73 and 200 was correct given that the latter was not supported by a receipt. The Respondents pray that the reference be dismissed in its entirety.
ANALYSIS AND DETERMINATION
9. I have considered the reference before the court, the reply filed thereto as well as the written submissions field by the parties. The only issue for determination is whether the learned taxing master erred in her taxation of the Bill of costs.
10. The circumstances under which the High Court may interfere with the exercise by a taxing officer of his/her discretion were set out in the case of FIRST AMERICAN BANK OF KENYA -VS- SHAH & OTHERS [2002] E.A. as follows;-
(1) that the Court cannot interfere with the taxing officer’s 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;
(2) it would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors and, according to the Order itself, some of the relevant factors to be taken into account include the nature and the importance of the cause or matter, the amount or value of the subject matter involved, the interest of the parties, the general conduct of the proceedings and any direction by the trial judge;
(3) if the Court considers that the decision of the Taxing Officer discloses errors of principle, the normal practise is to remit it back to the taxing officer for reassessment unless the Judge is satisfied that the error cannot materially have affected the assessment and the Court is not entitled to upset a taxation because in its opinion, the amount awarded was high;
(4) it is within the discretion of the Taxing Officer to increase or reduce the instruction fees and the amount of the increase or reduction is discretionary;
(5) the Taxing Officer must set out the basic fee before venturing to consider whether to increase or reduce it;
(6) the full instruction fees to defend a suit are earned the moment a defence has been filed and the subsequent progress of the matter is irrelevant to that item of fees;
(7) the mere fact that the defendant does research before
filing a defence and then puts a defence informed of such research is not necessarily indicative of the advocate’s unfamiliarity with basic principles of law and such unfamiliarity should not be turned into an advantage against the adversary.
11. On the issue of instruction fees, the Applicant in the Lower Court urged for an amount of Kshs. 2,500,000.00. The taxing Master after considering the same taxed off’ Kshs. 1,600,000/= leaving a balance of Kshs. 900,000 which was increased by 50% i.e Kshs. 450,000 making the total awarded for instruction fees Kshs. 1,350,000.
12. In assessing what to award as instruction fees the Taxing Master must consider the nature of the case, the amount or value of the subject matter, the labour required, the complexity of the case and the interest of the client in sustaining or losing the brief. In the case of OCHIENG ONYANGO, KIBET and OHAGA ADVOCATES -VS- ADOPT A LIGHT LTD [2006] eKLR the Court stated as follows:-
“…..The taxing master must consider the case and the labour required in the matter, the nature or importance of the matter more so the amount or value of the subject matter involved, the interest of the client in sustaining or losing a brief and the complexity of the dispute. In assessing an amount commensurate to the work undertaken, it is of fundamental importance to consider the value of the subject….”
…..The law gives the taxing master some leeway but like all discretions, it must be exercised judicially and in line to the material presented before court.” [own emphasis]
13. As a general rule the High Court will not interfere with the exercise by the taxing master of his/her discretion, save where there is shown to have been an error in principle, but should not interfere on an issue solely of quantum as this is an area where the taxing officer is deemed to be more experienced.
14. In REPUBLIC -VS- MINISTER FOR AGRICULTURE & 2 OTHERS EX PARTE SAMEUL MUCHIRI W’NJUGUNA & 6 OTHERS [2006] eKLR, Hon. Justice J. B. Ojwang (retired stated as follows:-
“The taxation of costs is not a mathematical exercise; it is entirely a matter of opinion based on experience. A Court will not, therefore, interfere with the award of a taxing officer, particularly where he is an officer of great experience, merely because it thinks the award somewhat too high or too low; it will only interfere if it thinks the award so high or so low as to amount to an injustice to one party or the other…. The court cannot interfere with the taxing officer’s 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. Of course it would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors. And according to the Advocates (Remuneration) Order itself, some of the relevant factors to take into account include the nature and importance of the case or matter, the amount or value of the subject matter involved, the interest of the parties, the general conduct of the proceedings and any given case and it is therefore open to the taxing officer to consider only such factors as may exist in the actual case before him. If the court considers that the decision of the taxing officer disclosed errors of principle, the normal practice is to remit it back to the taxing officer for reassessment unless the Judge is satisfied that the error cannot materially have affected the assessment…. A taxing officer does not arrive at a figure by multiplying the scale fee, but places what he considers a fair value upon the work and responsibility involved…since costs are the ultimate expression of essential liabilities attendant on the litigation event, they cannot be served out without either a specific statement of the authorizing clause in the law, or a particularized justification of the mode of exercise of nay discretion provided for….The complex elements in the proceedings which guide the exercise of the taxing officer’s discretion, must be specified cogently and with conviction. The nature of the forensic responsibility placed upon counsel, when they prosecute the substantive proceedings, must be described with specificity. If novelty is involved in the main proceedings, the nature of it must be identified and set out in a conscientious mode. If the conduct of the proceedings necessitated the deployment of a considerable amount of industry and was inordinately time-consuming, the details of such a situation must be set out in a clear manner. If large volumes of documentation had to be classified, assessed and simplified, the details of such initiative by counsel must be specifically indicated – apart, of course, from the need to show if such works have not already been provided for under a different head of costs…..”
15. Accordingly the High Court should only interfere with the decision of the Taxing Officer only in exceptional cases and awarded several factors should be considered when assessing costs awarded by the Taxing Officer.
16. The costs should not be allowed to rise to such level as to confine access to court to the wealthy; a successful litigant ought to be fairly reimbursed for he costs he had to incur in the case; the general level of remuneration of Advocates must be such as to attract recruits to the profession; so far as practicable there should be consistency in the awards made; every case must be decided on its own merit and in every variable degree, the value of the suit property should be taken into account.
17. In the case of JORETH LIMTIED -vs- KIGANJO & ASSOCIATES [2022] E.A, the Court of Appeal held that the value of the subject matter for the purposes of taxation ought to be determined from the pleadings, the judgment or settlement (if such be the case) but if the value is not so ascertainable then the taxing officer may apply his discretion to assess the instruction fee taking into account amongst other factors the nature and importance of the case, the interest of the parties, the general conduct of the proceedings and all other relevant considerations. Additionally the taxing officer ought to disclose what informed the decision to tax the costs in one way as opposed to another.
18. The rule is that the taxing officer should, in taxing a bill, first find the appropriate scale fee in schedule VI, and then consider whether the basic fee should be increased or reduced. This was reiterated by the Court of Appeal of Uganda in Makula International vs Cardinal Nsubuga & Another [1982] HCB 11 Where the Court pronounced itself as follows:
“The taxing officer should, in taxing a bill, first find the appropriate scale fee in schedule VI, and then consider whether the basic fee should increased or reduced. He must give reasons for deciding that the basic fee should be increased or decreased. When he has decided that the scale should be exceeded, he does not arrive at a figure which he awards by multiplying the scale fee by a multiplication factor, but places what he considers a fair value upon the work or responsibility involved. Lastly, he taxes the instruction fees, either by awarding the basic fee or by increasing or decreasing it.”
19. The taxing officer has to keep in mind that the successful party must be reimbursed expenses reasonably incurred due to the litigation, and that advocates, remuneration should be a such level as to attract recruits into the legal profession, he has to balance that with his duty to the public not to allow costs to be so hiked that courts would remain accessible to only the wealthy. In the case of Paul Ssemogerere & Olum vs. Attorney General - Civil Application No. 5 of 2001 [unreported] the Court held:
“In our view, there is no formula by which to calculate the instruction fee. The exercise is an intricate balancing act whereby the taxing officer has to mentally weigh the diverse general principles applicable, which sometimes, are against one another in order to arrive at the reasonable fee. Thus while the taxing officer has to keep in mind that the successful party must be reimbursed expenses reasonably incurred due to the litigation, and that advocates, remuneration should be at such level as to attract recruits into the legal profession, he has to balance that with his duty that courts would remain accessible to only the wealthy. Also while the taxing officer is to maintain consistency in the level of costs, it is settled that he has to make allowance for the fall, if any, in the value of money. It is because of consideration for this intricate balancing exercise that taxing officer’s opinion on what is the reasonable fee, is not to be interfered with lightly. There has to be a compelling reason to justify such interference.”
20. In the ruling delivered on 18th March 2024, the learned taxing master relying on Schedule 6A paragraph 1(i) of the Advocates Remuneration Order 2014 found that the instruction fees payable to present or oppose an election petition was to be a reasonable sum but not less than Kshs. 500,000.
21. The taxing master also noted correctly that the petition was withdrawn after the parties had gone through the pre-trial and had made several court attendances. The court also appreciated he nature of an election petition, the huge volume of work, the strict timelines involved as well as the effort and interest in election petitions.
22. In this matter the instruction fees could not be discerned form the pleadings judgement and/or settlement. Thus the taxing master correctly in my view relied on schedule 6 (A) of the Advocates Remuneration Order, 2014 which provides that the instruction fees shall be such sum as may be reasonable but not less than Kshs. 500,000. Section 6 B (a) stipulates that the same could be increased by 50% for Advocate and client costs.
23. Instruction fees to present or defend pleadings are earned the moment pleadings are filed and the subsequent progress of the matter is irrelevant to that item of fees. The mere fact that a party does research before filing pleadings is not necessarily indicative of the complexity of the matter as it may well be indicative of the advocate’s unfamiliarity with the basic principles of law and such unfamiliarity should not be turned into an advantage against the adversary. The view captured in the First American Bank of Kenya (supra)
24. The Applicant proposed instruction fees of Kshs. 2,500,000/- and maintained that the assessment of Kshs. 900,000/- instruction fees increased by 50% for the purpose of advocate and client’s costs was inadequate. On his part the Respondent’s case is that the bill was properly taxed and the proposed figure of Kshs. 2,500,000/- for instruction fees was excessive and would amount to unjust enrichment of the advocate.
25. The Applicants argued that the urgency of the matter was a requisite factor as response had to be filed within 3 days and the responsibility was high requiring interviewing of 28 witnesses of the Respondent within two days. There was also fact that voluminous forms 35As being 50 in number had to be perused and analysed.
26. My considered view is that the taxing master did not fully consider the labour required in the matter, the nature or importance of the matter more so the interest of the client in sustaining or losing a brief and the complexity of the dispute involved in the Petition that involved election to the Member of National Assembly for Kieni Constituency. The voluminous affidavits and annextures as well as the number of witnesses to be interviewed demonstrated the intense attention that was needed within a span of about three (3) days. Whilst the taxing master appreciated the nature of the professional work done by the Applicants the assessment of Kshs. 900,000/- as instruction fees was in my view not commensurate with the work done.
27. In this regard, in my view instruction fees of Kshs. 1,200,000/- would suffice as proportionate to the professional work done by the applicant considering the labour required in the matter, the nature or importance of the matter more so the interest of the client in sustaining or losing a brief and he complexity of the dispute involved in the Petition that involved election to the Member of National Assembly for Kieni Constituency. This would then be increased by 50% for the advocate client costs to make Kshs. 1,800,000/-. The pre-payment of Kshs. 1,250,000 would be subtracted from the said costs.
28. The Applicant further submitted that the taxing master erred in dismissing item Nos 73 and 103 of the Bill of costs dated 11th April 2023. In her ruling the taxing master justified her rejection of these items on grounds that to allow item No 73 would amount to double compensation as the same constituted instruction fees, whilst the court found that the Applicant had failed to prove items No. 102.
29. I have perused the Bill of Costs and I am inclined to agree with the taxing master on the above points.
30. Item No. 73 related to “instructions to make an application under certificate of urgency under Section 80 of the Elections Act, Rule 4, 5 and 19 of the Editions (Preliminary and County Elections) Petition Rules 2017 seeking extension of time to enable the 3rd Respondent to file affidavits for his witnesses.”
31. Under this item the Applicant sought the sum of Kshs. 20,000. The 3rd Respondent was the client Wanaina Anthony Njoroge. The applicant did not demonstrate sufficiently how this instruction was independent from the instruction for legal representation, which was already covered by the instruction fees.
32. Regarding item No. 102 being payment to “a Commissioner of Oaths on swearing the affidavit of service of bill of costs.” at Kshs. 200. This was a disbursement which was subject to proof. No receipts were produced before the taxing officer. Therefore I agree with the decision of the taxing master to exclude that claim.
33. Finally this reference succeeds only in respect of the amount awarded for Item No 1 being Instruction Fees. The ruling of the taxing master on all the other listed items is upheld.
34. I therefore review the decision of the taxing master delivered on 18th March 2024. I set aside the sum of Kshs. 900,000 for instruction fees and substitute it with an award of Kshs. 1,200,000/- as instruction fees increased by 50% for party to party Bill of Costs making a total award of Kshs. 1,800,000/- as instruction fees. The Bill is therefore taxed as follows;-
(a) Instruction fees Kshs. 1,800,000/-
(b) Add items 2, 72 and 74 to 94 Kshs. 120,912/-
(c) Add VAT (16%) Kshs. 307,345.92/-
(d) Disbursements Kshs. 695/-
(e) Total Kshs. 2,228,952.92/-
(f) Less paid Kshs. 1,250,000/-
(g) Net total Kshs. 978,952.92/-
DETERMINATION
35. Finally this court makes the following orders –
(a) The Ruling of the Taxing Master dated 18th March 2024 on
instruction fees is set aside and is substituted with
instructions fees of Kshs. 1,800,000/-
(b) The taxing master’s taxation of the Bill of Costs dated 11th
April 2023 at Kshs. 456,932.92 is consequently set aside
and substituted with the sum of Kshs. 978,952.92/-
(c) Each party shall meet their own costs.
Dated in Nyeri this 8th day of November, 2024