1.The applicant has filed a reference by way of Chamber Summons, dated 20/01/2025 seeking the following orders:
1. THAT this Honoruable Court be pleased to remit and/or refer the Advocate and Client Bill of Costs dated 09/09/2024 before a different taxing officer for fresh taxation of items 1, 6, 9, 19, 21 & 31 which are disputed items with appropriate directions on how it should be done;
2. THAT in the alternative this Honourable Court be pleased to proceed to tax by itself the Advocate and Client Bill of Costs dated 09/09/2024 on the disputed items;
3. THAT the costs of this application be provided for.
2.The application is supported by the grounds on the body of the Summons together with the affidavit of Kinyanjui Theuri, the managing partner of the applicant. The gist of the Summons is that the applicant filed its bill of costs dated 09/09/2024 seeking costs to the tune of Kshs. 506,613.00. In her decision dated 18th December 2024, the taxing master taxed the said bill of costs at Kshs. 86,295/=.
3.The applicant being dissatisfied with the taxing officer’s findings filed this reference. By a letter dated 20th December 2024, the applicant informed the taxing master that it was disputing the items set out in its prayers. The applicant now seeks that this court allows the application for the following reasons:
4. Firstly, with respect to item 1 of the bill, the taxing master applied the lower scale in awarding instruction fees, as opposed to the higher scale as the suit was defended. Secondly, in taxing items 6, 9, 19, and 21 of the bill of costs, the taxing master failed to appreciate that the suit proceeded for hearing during the era of physical filing and court attendance. It opined that the taxing master should have been guided by the principle that Advocate Remuneration Order empowered the officer to allow all such costs, charges and expenses as shall appear to have been necessary or proper for the attainment of justice or defending any party’s rights.
5.Lastly on item 31, it was contended that the taxing master erred by failing to increase the costs by half, despite purporting to exercise her discretion under law. In the applicant’s view, this finding was based on wrong principles and therefore led to a wrong conclusion. Accordingly, it prayed that the reference be allowed as prayed.
6. As at the time of writing this ruling, the respondent had not filed any response to the reference hence it remained unopposed.
ANALYSIS AND DETERMINATION
7.The applicant’s bill of costs dated 09/09/2024 sought the sum of Kshs. 506,613.50. In her ruling dated 18/12/2024, the taxing master taxed the bill at Kshs 86,295.00. This court has considered the issues raised and the question for determination is whether the taxing master reached a correct or incorrect finding in arriving at that decision.
8.In considering the merits of this reference, this court is guided by the pronouncements of the Supreme Court in Kenya Airports Authority vs. Otieno Ragot and Company Advocates [2024] KESC 44 (KLR) when it was emphasized that the Advocates Remuneration Order regulates the remuneration of advocates and the reimbursement of costs incurred by successful litigants. The objective is to ensure that fees and costs are reasonable, prevent exploitation, and maintain professional standards. Also, the Court of Appeal in Premchand Raichand Ltd v. Quarry Services of East Africa Ltd (No. 3) [1972] EA 162 further articulated the guiding principles which include that; costs should not be so high as to restrict access to justice to the wealthy; a successful litigant should be fairly reimbursed for expenses incurred; remuneration of advocates must be sufficient to attract entrants to the profession; and awards should, as far as practicable, be consistent.
9. At item I, the applicant sought the sum of Kshs. 235,000.00 as instruction fees for a subject matter whose decretal sum was Kshs. 703,550.00. It urged the taxing master to find in its favor by stating
“Fee to cover instruction received to act for the respondent’s insured Machakos CMCC No. E826 of 2020; Charles Kirant Kishoiyan vs. Mukami Pamela Purity. Taking into account the complexity of the matter, the time taken and the value of the subject matter being a decretal sum of Kshs. 703,550.00. To our instruction fees under Schedule VII of the Advocates Remuneration Order 2014.”
10.In her decision, the taxing master assessed instruction fees at Kshs. 65,000.00 and VAT at Kshs 10,400.00. While she applied the correct principles as delineated in the decision she cited, she erred in applying the lower scale under Schedule 7 (1). The note to the schedule clearly provides that the lower scale applies only where no defence or denial of liability is filed, while the higher scale applies in defended suits. Since the matter was defended, the higher scale ought to have been applied. Accordingly, the finding on item 1 is set aside and substituted with kshs 90,000.00.
11.On items 19 and 21 the taxing master noted that they were court attendances and taxed them at Kshs. 3,000.00. Looking the narratives by the applicant, they are all indicated as ‘to journey to court’. I therefore see no reason to disturb those findings. As for item 19, it is not clear what was to proceed and therefore remains Kshs. 3,000.00. I therefore see no reason to disturb those findings. As for item 6, it is indicated that ‘to attend court to file memo, defense, list of witnesses and list of documents 15kms at 1,000.00. However, just like items 19 and 21, items 6 and 9 were routine court attendances. They are therefore all to be capped at Kshs. 3,000.00.
12.This court agrees with the taxing master that these were routine court attendances. Claims for travel expenses should properly be placed under disbursements supported by receipts or credible proof of expenditure Without such evidence, they cannot be allowed as separate items.
13.Regarding item 31, the applicant sought to add ½ under schedule 7 (B) of the Advocates Remuneration Order – advocate/client fees. It provides as follows:
“As between advocate and either the minimum fees shall be—
(a)the fees prescribed in A above increased by 50%;
(b)the fees ordered by the court increased by the 50%; or
(c)the fees agreed by the parties under paragraph 57 increased by 50%, as the case may be and the increase to include all proper attendances on the client and all necessary correspondence.”
14.The above provisions use the word ‘shall’ makes the provision mandatory, leaving no discretion to the taxing master. I therefore find that the applicant is entitled to a 50per cent increase on the subtotal of fees taxed, inclusive of the adjustments made herein.
15.Having found the above, the following are my final orders:
a) Item I of the bill taxed at Kshs. 65,000.00 is set aside and substitute with the sum of Kshs. 90,000.00;
b) The reference on items 19 and 21 fails and are dismissed;
c) Item 6 and 9 are each taxed at Kshs. 3,000.00;
d) The applicant is entitled to a 50% increase of the sub total taxed as exposited in item 31 amount which shall be calculated taking into account the orders in i, and iii above.
e) There shall be no order on costs.
It is so ordered.
1. THAT this Honoruable Court be pleased to remit and/or refer the Advocate and Client Bill of Costs dated 09/09/2024 before a different taxing officer for fresh taxation of items 1, 6, 9, 19, 21 & 31 which are disputed items with appropriate directions on how it should be done;
2. THAT in the alternative this Honourable Court be pleased to proceed to tax by itself the Advocate and Client Bill of Costs dated 09/09/2024 on the disputed items;
3. THAT the costs of this application be provided for.
2.The application is supported by the grounds on the body of the Summons together with the affidavit of Kinyanjui Theuri, the managing partner of the applicant. The gist of the Summons is that the applicant filed its bill of costs dated 09/09/2024 seeking costs to the tune of Kshs. 506,613.00. In her decision dated 18th December 2024, the taxing master taxed the said bill of costs at Kshs. 86,295/=.
3.The applicant being dissatisfied with the taxing officer’s findings filed this reference. By a letter dated 20th December 2024, the applicant informed the taxing master that it was disputing the items set out in its prayers. The applicant now seeks that this court allows the application for the following reasons:
4. Firstly, with respect to item 1 of the bill, the taxing master applied the lower scale in awarding instruction fees, as opposed to the higher scale as the suit was defended. Secondly, in taxing items 6, 9, 19, and 21 of the bill of costs, the taxing master failed to appreciate that the suit proceeded for hearing during the era of physical filing and court attendance. It opined that the taxing master should have been guided by the principle that Advocate Remuneration Order empowered the officer to allow all such costs, charges and expenses as shall appear to have been necessary or proper for the attainment of justice or defending any party’s rights.
5.Lastly on item 31, it was contended that the taxing master erred by failing to increase the costs by half, despite purporting to exercise her discretion under law. In the applicant’s view, this finding was based on wrong principles and therefore led to a wrong conclusion. Accordingly, it prayed that the reference be allowed as prayed.
6. As at the time of writing this ruling, the respondent had not filed any response to the reference hence it remained unopposed.
ANALYSIS AND DETERMINATION
7.The applicant’s bill of costs dated 09/09/2024 sought the sum of Kshs. 506,613.50. In her ruling dated 18/12/2024, the taxing master taxed the bill at Kshs 86,295.00. This court has considered the issues raised and the question for determination is whether the taxing master reached a correct or incorrect finding in arriving at that decision.
8.In considering the merits of this reference, this court is guided by the pronouncements of the Supreme Court in Kenya Airports Authority vs. Otieno Ragot and Company Advocates [2024] KESC 44 (KLR) when it was emphasized that the Advocates Remuneration Order regulates the remuneration of advocates and the reimbursement of costs incurred by successful litigants. The objective is to ensure that fees and costs are reasonable, prevent exploitation, and maintain professional standards. Also, the Court of Appeal in Premchand Raichand Ltd v. Quarry Services of East Africa Ltd (No. 3) [1972] EA 162 further articulated the guiding principles which include that; costs should not be so high as to restrict access to justice to the wealthy; a successful litigant should be fairly reimbursed for expenses incurred; remuneration of advocates must be sufficient to attract entrants to the profession; and awards should, as far as practicable, be consistent.
9. At item I, the applicant sought the sum of Kshs. 235,000.00 as instruction fees for a subject matter whose decretal sum was Kshs. 703,550.00. It urged the taxing master to find in its favor by stating
“Fee to cover instruction received to act for the respondent’s insured Machakos CMCC No. E826 of 2020; Charles Kirant Kishoiyan vs. Mukami Pamela Purity. Taking into account the complexity of the matter, the time taken and the value of the subject matter being a decretal sum of Kshs. 703,550.00. To our instruction fees under Schedule VII of the Advocates Remuneration Order 2014.”
10.In her decision, the taxing master assessed instruction fees at Kshs. 65,000.00 and VAT at Kshs 10,400.00. While she applied the correct principles as delineated in the decision she cited, she erred in applying the lower scale under Schedule 7 (1). The note to the schedule clearly provides that the lower scale applies only where no defence or denial of liability is filed, while the higher scale applies in defended suits. Since the matter was defended, the higher scale ought to have been applied. Accordingly, the finding on item 1 is set aside and substituted with kshs 90,000.00.
11.On items 19 and 21 the taxing master noted that they were court attendances and taxed them at Kshs. 3,000.00. Looking the narratives by the applicant, they are all indicated as ‘to journey to court’. I therefore see no reason to disturb those findings. As for item 19, it is not clear what was to proceed and therefore remains Kshs. 3,000.00. I therefore see no reason to disturb those findings. As for item 6, it is indicated that ‘to attend court to file memo, defense, list of witnesses and list of documents 15kms at 1,000.00. However, just like items 19 and 21, items 6 and 9 were routine court attendances. They are therefore all to be capped at Kshs. 3,000.00.
12.This court agrees with the taxing master that these were routine court attendances. Claims for travel expenses should properly be placed under disbursements supported by receipts or credible proof of expenditure Without such evidence, they cannot be allowed as separate items.
13.Regarding item 31, the applicant sought to add ½ under schedule 7 (B) of the Advocates Remuneration Order – advocate/client fees. It provides as follows:
“As between advocate and either the minimum fees shall be—
(a)the fees prescribed in A above increased by 50%;
(b)the fees ordered by the court increased by the 50%; or
(c)the fees agreed by the parties under paragraph 57 increased by 50%, as the case may be and the increase to include all proper attendances on the client and all necessary correspondence.”
14.The above provisions use the word ‘shall’ makes the provision mandatory, leaving no discretion to the taxing master. I therefore find that the applicant is entitled to a 50per cent increase on the subtotal of fees taxed, inclusive of the adjustments made herein.
15.Having found the above, the following are my final orders:
a) Item I of the bill taxed at Kshs. 65,000.00 is set aside and substitute with the sum of Kshs. 90,000.00;
b) The reference on items 19 and 21 fails and are dismissed;
c) Item 6 and 9 are each taxed at Kshs. 3,000.00;
d) The applicant is entitled to a 50% increase of the sub total taxed as exposited in item 31 amount which shall be calculated taking into account the orders in i, and iii above.
e) There shall be no order on costs.
It is so ordered.