(Being a reference against the decision of Hon. N. M. Idagwa, Deputy Registrar, Kabarnet, delivered on 1st February 2022)
1. This ruling is in respect of a reference by the applicant dated 23rd March 2022. Through the reference, the applicant seeks to quash or set aside the decision/ruling of N.M Idagwa, Deputy Registrar, delivered on 1st February, 2022 and the proceedings leading to that decision/ruling.
2. The application is premised on the grounds that there was no retainer between the applicant and the respondent on which the decision could hinge; that taxation of the respondent’s bill of costs proceeded without notice to the applicant and that the Deputy Registrar, in taxing the bill, failed to take into account factors he ought to have taken into account in taxing the impugned bill of costs.
3. The application is supported by the affidavits (supporting and further) of the applicants sworn on 23rd March 2022 and 25th July 2022 respectively, in which the grounds on the face of the application are reiterated.
4. In reply and opposition of the application, the respondent filed the replying affidavit he swore on 6th May 2022 in which he denies the allegations contained in applicant’s affidavits.
5. The respondent contends that the application was filed outside the timelines provided in Rule 11 of the Advocates Remuneration Rules without leave of the court hence incompetent; that the application is frivolous, scandalous, vexatious and an abuse of the process of the court.
6. Pursuant to directions given on 26th September 2023 parties filed submissions, which I have read and considered.
7. From the application, the affidavit evidence adduced in support and opposition thereto and the submissions by the parties, the issues for the court’s determination are:-
i. Whether there was a retainer between the applicant and the respondent?
ii. Whether the reference was filed within the prescribed time;
iii. Whether the applicant was accorded opportunity to be heard on the respondent’s Bill of Costs?
iv. Whether the Taxing Master failed to take into account matters he ought to have taken into account;
v. What orders should the court make?
8. On whether there was a retainer between the applicant and the respondent, whilst there was no written retainer signed between the applicant and the respondent, in the circumstances of this case, there exists circumstances namely conduct of the parties, from which existence of a retainer can be presumed to exist. For that reason, the applicant’s claim that there was no retainer between herself and respondent’s firm of advocates cannot be sustained.
9. On whether the reference was filed within the prescribed time, having read and considered the affidavit evidence adduced in this application and the applicable law, in particular, Rule 11 of the Advocates Remuneration Order, I find that the reference was filed within the prescribed timelines.
10. As to whether the applicant was accorded opportunity to be heard on the respondent’s Bill of Tax, the applicant refers to Rule 13 of the Advocates Remuneration Order and the court record and contends that the Bill of Costs was not subjected to taxation. In that regard, the applicant contends that on 19th October 2021, a date slated for mention, a ruling date was given, there by contravening the mandatory provisions of Rule 13(2).
11. Having reviewed the court record, I find that the applicant was represented by counsel. It appears that the applicant’s counsel did not object to the Bill leading to its being taxed by the Taxing Master without the applicant’s input. In view of the foregoing, I find and hold that the applicant was accorded an opportunity to participate in the taxation but failed to inform the Taxing Master that he had objection to any items in the Bill. The claim of having been denied an opportunity to be heard on the respondent’s Bill of Costs is therefore, unmaintainable.
12. On whether the Taxing Master failed to take into account matters he ought to have taken into account, the applicant points out that the Bill of Costs was expressed to be in respect of Eldama Ravine ELC Case No.9 of 2020 and that the Bill was prepared and filed in respect of services allegedly rendered in litigation. He further points out that the Bill of Costs was taxed under Schedule 1 and submits that reference to Schedule 1 amounts to an error of principle by the Taxing Officer which warrants intervention of this court. In that regard, reference is made to the case of Sophie Chirchir t/a Cherono Chirchir & Co. Advocates v. African Merchant Co. Ltd (2020)e KLR where the judge, citing the decision in Nyangito & Co. Advocates vs. Doinyo Lessos Creameries Ltd (2014) e KLR held:-
“...the court cannot interfere with Taxing Officers decision on taxation unless it is shown that either the decision was based on an error of principle or the fees awarded was manifestly excessive as to justify an inference that it was based on an error of principle.
The court further observed: -
“It would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors, according to the remuneration order itself. Some of the relevant factors to be taken into account include the nature and importance of the cause or matter, the amount or value of the subject matter involved; the interests of the parties, the general conduct of the proceedings and any direction by the trial judge.”
13. In the circumstances of this case, the applicant submits that by proceeding with taxation when there was a dispute as to whether there existed a retainer between the applicant and the respondent, failure to fix the Bill of Costs for taxation, failure to give notice of taxation and application of Schedule 1, constituted errors of principle warranting interference with the decision of the Taxing Master.
14. I Have read and considered the reasons advanced by the applicant in support of her claim that the Taxing Master committed an error of principle in taxing the the respondent’s Bill of costs, particularly by basing the taxation on Schedule 1 of the Advocates Remuneration Order when the bill of costs was premised on litigation. In essence, the applicant claims that the taxation was premised on the wrong Schedule.
15. A review of the court record, in particular, the impugned decision of the Taxing Master referred to the wrong schedule, Schedule 1, while the taxation ought to have been premised on either Schedule 6 or 7 which deal with scale of fees for litigation in the superior or sub-ordinate courts. For the foregoing reason, I find and hold that there is an error apparent on the face of the record of the court warranting either review of the ruling and/or setting aside the taxed Bill of Costs.
16. The application before me not being one for review, the order that best commends itself in the circumstances of this case is an order setting aside the taxed bill of costs and remitting it to the Taxing Master for taxation afresh and/or correction of the error apparent on the face of the record of the court.
17. Parties shall bear their own costs of the reference.
18. Orders accordingly.
Dated, signed and delivered at Iten this 3rd day of July 2024
Ruling delivered virtually in the presence of:
Mr. Kiptoo for the applicant
Mr. Gatonye for the respondent
Court Asst.: Ian