Background and Introduction
1. Before the Court is a reference dated 14th October 2024, filed by the client, Esther Wambui Njoroge, under Rule 11(2) of the Advocates Remuneration Order (ARO). The applicant seeks to set aside the ruling delivered by the taxing master, Hon. C. Wanyama, on 30th August 2022, in respect of the advocate’s bill of costs dated 25th July 2018.
2. The reference is anchored on the grounds set out in the application and the supporting affidavit sworn by the client. She contends that the taxing master erred by failing to strike out the bill of costs, which she argues is fatally defective.
3. Her case is that the Bill was filed against the Estate of Diawara Adama without the proper joinder of both duly appointed joint administrators. In particular, she argues that the omission of her co-administrator, Hawa Diawara, rendered the proceedings incompetent, as suits on behalf of an estate must be instituted or defended jointly by all administrators. She emphasizes that the underlying suit was instituted jointly by both administrators for the benefit of the estate, and not in her personal capacity
4. The client further challenges the legitimacy of the advocate’s claim for legal fees, asserting that the advocate did not adduce evidence of legal services rendered in HCCC No. 178 of 2013, the suit from which the bill of costs is said to have arisen.
5. On the issue of instruction fees, she contends that the taxing master applied the wrong principles in awarding Kshs. 300,000/=, notwithstanding a finding that the value of the subject matter could not be ascertained. She submits that in such circumstances, Paragraph 1(m) of the ARO provides for a default fee of Kshs. 6,300/=. Accordingly, she argues that the substantial enhancement of the fee by nearly fifty times was arbitrary, excessive, and unjustified by any special or exceptional circumstances.
6. The applicant also disputes the total award of Kshs. 640,949/=, which includes Kshs. 425,436/= in taxed costs, a 50 per cent advocate–client uplift, and VAT in the sum of Kshs. 102,105/=. She maintains that the award was grossly excessive, lacked proper itemization, and was founded on flawed instruction fees and irrelevant considerations.
7. The advocate had not filed any response to the application at the time of writing this Ruling, despite having been granted ample opportunity to do so. While the averments made by the applicant remain unchallenged, this Court is nonetheless under a duty to assess the veracity and sufficiency of the applicant’s evidence and submissions.
Analysis and Determination
8. The main issue for determination is whether the application is meritorious and warrants the intervention of this Court. It is now well settled in jurisprudence that the circumstances under which this Court may interfere with the exercise of discretion by a taxing master are limited and circumscribed. The Court will only intervene where it is demonstrated that the taxing master misdirected themselves on a point of principle, or that the decision was manifestly excessive or unjust so as to amount to an error in principle.
9. In First American Bank of Kenya V Shah and Others, (2002) EALR 64 the court held that:
“First, I find that on the authorities, this court cannot interfere with the taxing master’s decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was so manifestly excessive as to justify an inference that it was based on an error of principle.”
10. Similarly, in Republic V Minister for Agriculture & 2 Others ex parte Samuel Muchiri W’njuguna, [2006] eKLR, Ojwang, J. (as he then was), addressed the applicable legal principles regarding judicial interference with the taxing master’s discretion and expressed himself 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 master, 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 master’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 direction by the trial judge. Needless to state not all the above factors may exist in any given case and it is therefore open to the Taxing master to consider only such factors as may exist in the actual case before him.
If the court considers that the decision of the taxing master discloses errors of principle, the normal practice is to remit it back to the taxing master for reassessment unless the Judge is satisfied that the error cannot materially have affected the assessment…A taxing master 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…”
11. Against this background, the first issue arising for consideration is the alleged non-joinder of the applicant’s co-administrator, Hawa Diawara. The question is whether this omission rendered the Bill of Costs incurably defective, given that it was filed solely against the applicant in her personal capacity. I have examined the bill of costs dated 25th July 2018, and it is evident from the face of the document that only the applicant is named as the respondent therein.
12. The advocate’s failure to respond to the application means that no justification has been offered for the omission, notwithstanding that the bill of costs expressly states that it arises from services rendered in HCCC No. 178 of 2013: In the Matter of the Estate of Diawara Adama. Indeed, a closer examination of the record reveals inconsistencies in the pleadings filed in relation to the taxation proceedings. Some documents refer solely to the applicant as administrator, while others cite both joint administrators.
13. It is not in dispute that the suit in HCCC No. 178 of 2013 was instituted by the co-administrators, acting jointly and on behalf of the Estate of Diawara Adama. Pursuant to Section 82(a) of the Law of Succession Act, the authority to institute or defend proceedings on behalf of the estate is vested in the personal representatives. Where there are joint administrators, the law mandates that they act collectively in representing the estate, and any liabilities or expenses arising therefrom are to be borne by the estate.
14. This position is further reinforced by Order 31 Rule 2 of the Civil Procedure Rules, which provides as follows:
“Where there are several trustees, executors or administrators, they shall all be made parties to a suit against one or more of them.”
15. It therefore follows that all subsequent proceedings flowing from the original suit, including taxation proceedings, must reflect the joint administrators, not in their individual capacities, but expressly in their representative capacity. I therefore find merit in the applicant’s argument that the bill of costs ought to have been brought jointly against both administrators, and clearly designated as being against them in their representative capacity as personal representatives of the estate.
16. The second fundamental issue for determination is whether the failure to properly name both administrators in their representative capacity renders the bill of costs fatally or incurably defective. I do not think so. While the omission is undoubtedly a significant procedural irregularity, it is not one that vitiates the proceedings or renders them null and void. This is because the defect neither goes to the root of the Court’s jurisdiction nor has it been demonstrated to have occasioned any prejudice to the parties or resulted in a miscarriage of justice.
17. Indeed, the taxing master was fully cognizant of the suit and the parties involved. At page 1 of the Ruling, the taxing master expressly confirms that being satisfied the advocate had represented the respondents in HCCC No. 178 of 2013, it was prudent to proceed on the basis of the documents in that file. This reference confirms that the error of omission in the bill of costs was not an isolated oversight but one that continued into the ruling.
18. Nevertheless, it is evident that the nature and scope of the underlying suit were understood by all parties, and the Certificate of Taxation eventually issued reflects both administrators by name, albeit without indicating their legal capacity as representatives of the estate.
19. In these circumstances, I am satisfied that this Court is properly empowered under Sections 1A and 1B of the Civil Procedure Act to remedy the defect in furtherance of the overriding objective of the Act. Moreover, Section 100 of the Civil Procedure Act authorizes the Court at any time to amend any defect or error in any proceeding in a suit, including those arising from misdescription or errors in form. In my view, this is a suitable case in which the Court ought to invoke these provisions to regularize the record and give effect to substantive justice.
20. The first substantive issue raised by the applicant concerns the instruction fees as taxed. In determining the appropriate fee, the taxing master was obligated to apply the principles articulated by the Court of Appeal in Joreth Ltd V Kigano & Associates, [2002] 1 EA 92, where the Court held:
“The value of the subject matter for purposes 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 master is entitled to use his discretion to assess such instruction fees as he considers just taking in account, amongst other matters, the nature and the 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.”
21. In the present case, the taxing master found that the value of the subject matter could not be ascertained from the Plaint dated 15th May 2013. Consequently, the instruction fees were assessed under Paragraph 1(m) of the ARO, 2006. The amount was enhanced from the prescribed minimum of Kshs. 6,300/= to Kshs. 300,000/=, taking into account the nature of the subject matter, specifically the artwork involved, as well as the advocate’s engagement, including visits to the police station.
22. Upon reviewing the reasons provided in the ruling, I am satisfied that the taxing master properly exercised discretion in assessing the instruction fees. Crucially, there is no indication that the taxing master misapprehended the applicable legal principles or disregarded the guiding factors set out in Joreth Ltd V Kigano [supra]. The mere fact that this Court might have awarded a different sum is not, of itself, a ground for interference.
23. As was aptly stated in Premchand Raichand Ltd & Another V Quarry Services of East Africa Ltd & Another, [1972] EA 162, taxation is not a mathematical exercise, and wide latitude is afforded to the taxing officer in the exercise of discretion. The amount awarded in this case is neither manifestly excessive nor unreasonably low as to justify this Court’s intervention.
24. Consequently, there is no basis upon which to interfere with the award of getting-up fees, assessed at 50% of the instruction fees, or the inclusion of Value Added Tax, both of which were properly awarded in accordance with the final instruction fees determined by the taxing master.
25. With respect to the applicant’s submissions challenging the allowances made for attendances, correspondence, perusal of pleadings, service of documents, photocopying, and other disbursements, I am not persuaded by the argument that no supporting evidence was presented before the taxing master. A review of the ruling, particularly at page 4, demonstrates that the taxing master provided reasoned justifications for the findings. It is evident that the conclusions therein were informed by the material and documentation placed before the taxing master. This limb of the applicant’s argument is therefore without merit and must fail.
Disposition
26. Accordingly, I find no error of principle, misdirection, or manifest unreasonableness that would justify interference with the taxing master’s decision. The reference dated 14th October 2024, brought by Esther Wambui Njoroge and Hawa Diawara in their capacity as joint administrators of the Estate of Diawara Adama, is devoid of merit and is hereby dismissed. Each party shall bear their own costs of the Reference.
1. Before the Court is a reference dated 14th October 2024, filed by the client, Esther Wambui Njoroge, under Rule 11(2) of the Advocates Remuneration Order (ARO). The applicant seeks to set aside the ruling delivered by the taxing master, Hon. C. Wanyama, on 30th August 2022, in respect of the advocate’s bill of costs dated 25th July 2018.
2. The reference is anchored on the grounds set out in the application and the supporting affidavit sworn by the client. She contends that the taxing master erred by failing to strike out the bill of costs, which she argues is fatally defective.
3. Her case is that the Bill was filed against the Estate of Diawara Adama without the proper joinder of both duly appointed joint administrators. In particular, she argues that the omission of her co-administrator, Hawa Diawara, rendered the proceedings incompetent, as suits on behalf of an estate must be instituted or defended jointly by all administrators. She emphasizes that the underlying suit was instituted jointly by both administrators for the benefit of the estate, and not in her personal capacity
4. The client further challenges the legitimacy of the advocate’s claim for legal fees, asserting that the advocate did not adduce evidence of legal services rendered in HCCC No. 178 of 2013, the suit from which the bill of costs is said to have arisen.
5. On the issue of instruction fees, she contends that the taxing master applied the wrong principles in awarding Kshs. 300,000/=, notwithstanding a finding that the value of the subject matter could not be ascertained. She submits that in such circumstances, Paragraph 1(m) of the ARO provides for a default fee of Kshs. 6,300/=. Accordingly, she argues that the substantial enhancement of the fee by nearly fifty times was arbitrary, excessive, and unjustified by any special or exceptional circumstances.
6. The applicant also disputes the total award of Kshs. 640,949/=, which includes Kshs. 425,436/= in taxed costs, a 50 per cent advocate–client uplift, and VAT in the sum of Kshs. 102,105/=. She maintains that the award was grossly excessive, lacked proper itemization, and was founded on flawed instruction fees and irrelevant considerations.
7. The advocate had not filed any response to the application at the time of writing this Ruling, despite having been granted ample opportunity to do so. While the averments made by the applicant remain unchallenged, this Court is nonetheless under a duty to assess the veracity and sufficiency of the applicant’s evidence and submissions.
Analysis and Determination
8. The main issue for determination is whether the application is meritorious and warrants the intervention of this Court. It is now well settled in jurisprudence that the circumstances under which this Court may interfere with the exercise of discretion by a taxing master are limited and circumscribed. The Court will only intervene where it is demonstrated that the taxing master misdirected themselves on a point of principle, or that the decision was manifestly excessive or unjust so as to amount to an error in principle.
9. In First American Bank of Kenya V Shah and Others, (2002) EALR 64 the court held that:
“First, I find that on the authorities, this court cannot interfere with the taxing master’s decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was so manifestly excessive as to justify an inference that it was based on an error of principle.”
10. Similarly, in Republic V Minister for Agriculture & 2 Others ex parte Samuel Muchiri W’njuguna, [2006] eKLR, Ojwang, J. (as he then was), addressed the applicable legal principles regarding judicial interference with the taxing master’s discretion and expressed himself 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 master, 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 master’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 direction by the trial judge. Needless to state not all the above factors may exist in any given case and it is therefore open to the Taxing master to consider only such factors as may exist in the actual case before him.
If the court considers that the decision of the taxing master discloses errors of principle, the normal practice is to remit it back to the taxing master for reassessment unless the Judge is satisfied that the error cannot materially have affected the assessment…A taxing master 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…”
11. Against this background, the first issue arising for consideration is the alleged non-joinder of the applicant’s co-administrator, Hawa Diawara. The question is whether this omission rendered the Bill of Costs incurably defective, given that it was filed solely against the applicant in her personal capacity. I have examined the bill of costs dated 25th July 2018, and it is evident from the face of the document that only the applicant is named as the respondent therein.
12. The advocate’s failure to respond to the application means that no justification has been offered for the omission, notwithstanding that the bill of costs expressly states that it arises from services rendered in HCCC No. 178 of 2013: In the Matter of the Estate of Diawara Adama. Indeed, a closer examination of the record reveals inconsistencies in the pleadings filed in relation to the taxation proceedings. Some documents refer solely to the applicant as administrator, while others cite both joint administrators.
13. It is not in dispute that the suit in HCCC No. 178 of 2013 was instituted by the co-administrators, acting jointly and on behalf of the Estate of Diawara Adama. Pursuant to Section 82(a) of the Law of Succession Act, the authority to institute or defend proceedings on behalf of the estate is vested in the personal representatives. Where there are joint administrators, the law mandates that they act collectively in representing the estate, and any liabilities or expenses arising therefrom are to be borne by the estate.
14. This position is further reinforced by Order 31 Rule 2 of the Civil Procedure Rules, which provides as follows:
“Where there are several trustees, executors or administrators, they shall all be made parties to a suit against one or more of them.”
15. It therefore follows that all subsequent proceedings flowing from the original suit, including taxation proceedings, must reflect the joint administrators, not in their individual capacities, but expressly in their representative capacity. I therefore find merit in the applicant’s argument that the bill of costs ought to have been brought jointly against both administrators, and clearly designated as being against them in their representative capacity as personal representatives of the estate.
16. The second fundamental issue for determination is whether the failure to properly name both administrators in their representative capacity renders the bill of costs fatally or incurably defective. I do not think so. While the omission is undoubtedly a significant procedural irregularity, it is not one that vitiates the proceedings or renders them null and void. This is because the defect neither goes to the root of the Court’s jurisdiction nor has it been demonstrated to have occasioned any prejudice to the parties or resulted in a miscarriage of justice.
17. Indeed, the taxing master was fully cognizant of the suit and the parties involved. At page 1 of the Ruling, the taxing master expressly confirms that being satisfied the advocate had represented the respondents in HCCC No. 178 of 2013, it was prudent to proceed on the basis of the documents in that file. This reference confirms that the error of omission in the bill of costs was not an isolated oversight but one that continued into the ruling.
18. Nevertheless, it is evident that the nature and scope of the underlying suit were understood by all parties, and the Certificate of Taxation eventually issued reflects both administrators by name, albeit without indicating their legal capacity as representatives of the estate.
19. In these circumstances, I am satisfied that this Court is properly empowered under Sections 1A and 1B of the Civil Procedure Act to remedy the defect in furtherance of the overriding objective of the Act. Moreover, Section 100 of the Civil Procedure Act authorizes the Court at any time to amend any defect or error in any proceeding in a suit, including those arising from misdescription or errors in form. In my view, this is a suitable case in which the Court ought to invoke these provisions to regularize the record and give effect to substantive justice.
20. The first substantive issue raised by the applicant concerns the instruction fees as taxed. In determining the appropriate fee, the taxing master was obligated to apply the principles articulated by the Court of Appeal in Joreth Ltd V Kigano & Associates, [2002] 1 EA 92, where the Court held:
“The value of the subject matter for purposes 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 master is entitled to use his discretion to assess such instruction fees as he considers just taking in account, amongst other matters, the nature and the 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.”
21. In the present case, the taxing master found that the value of the subject matter could not be ascertained from the Plaint dated 15th May 2013. Consequently, the instruction fees were assessed under Paragraph 1(m) of the ARO, 2006. The amount was enhanced from the prescribed minimum of Kshs. 6,300/= to Kshs. 300,000/=, taking into account the nature of the subject matter, specifically the artwork involved, as well as the advocate’s engagement, including visits to the police station.
22. Upon reviewing the reasons provided in the ruling, I am satisfied that the taxing master properly exercised discretion in assessing the instruction fees. Crucially, there is no indication that the taxing master misapprehended the applicable legal principles or disregarded the guiding factors set out in Joreth Ltd V Kigano [supra]. The mere fact that this Court might have awarded a different sum is not, of itself, a ground for interference.
23. As was aptly stated in Premchand Raichand Ltd & Another V Quarry Services of East Africa Ltd & Another, [1972] EA 162, taxation is not a mathematical exercise, and wide latitude is afforded to the taxing officer in the exercise of discretion. The amount awarded in this case is neither manifestly excessive nor unreasonably low as to justify this Court’s intervention.
24. Consequently, there is no basis upon which to interfere with the award of getting-up fees, assessed at 50% of the instruction fees, or the inclusion of Value Added Tax, both of which were properly awarded in accordance with the final instruction fees determined by the taxing master.
25. With respect to the applicant’s submissions challenging the allowances made for attendances, correspondence, perusal of pleadings, service of documents, photocopying, and other disbursements, I am not persuaded by the argument that no supporting evidence was presented before the taxing master. A review of the ruling, particularly at page 4, demonstrates that the taxing master provided reasoned justifications for the findings. It is evident that the conclusions therein were informed by the material and documentation placed before the taxing master. This limb of the applicant’s argument is therefore without merit and must fail.
Disposition
26. Accordingly, I find no error of principle, misdirection, or manifest unreasonableness that would justify interference with the taxing master’s decision. The reference dated 14th October 2024, brought by Esther Wambui Njoroge and Hawa Diawara in their capacity as joint administrators of the Estate of Diawara Adama, is devoid of merit and is hereby dismissed. Each party shall bear their own costs of the Reference.