1. The Client/applicant moved this court by way of a chamber summons application dated 24th September 2024 seeking the following orders against the advocates/Respondent;
i. Spent
ii. The Honourable court be pleased to rescind and/or quash the ruling and decision of the taxing officer [master] rendered on the 5th September 2024, and the consequential certificate of taxation arising therefrom.
iii. That the ruling on taxation of the Advocate Party and Party Bill of Costs delivered by the Deputy Registrar on the 5th September 2024, be quashed and set aside on the grounds of lack of jurisdiction and excessive discretion towards taxation under reference.
iv. In the alternative and without prejudice to the foregoing, the Honourable Court be pleased to remit the Party and Party Bill of Costs for re-taxation before the Deputy Registrar of the appropriate division (Civil Division), with specific directions to assess the fees based on the actual work done by the Advocate, which was limited to an Interlocutory application and not otherwise.
v. Further and in addition, the Honourable Court be pleased to declare that the instruction fees and getting up fees awarded by the Deputy Registrar be reviewed and adjusted downward, as the matter did not proceed to full hearing of the main appeal.
vi. The Honourable court be pleased to award costs of the Reference to the Applicant.
vii. The Honourable court be pleased to issue and/or grant such further and/or other orders/reliefs, if any, which shall be deemed just, appropriate and expedient in the circumstances.
2. The application is premised on the grounds on the face of it and the supporting affidavit of Suryakantbhai Bhailalbhai Patel sworn on 24th September 2024.
3. There is also the application dated 19th September 2024 by the Advocate seeking that judgment be entered in the sum of Kshs. 551,350/-plus interest at 14% per annum from 16th July 2024 in favour of the Advocate as per the Certificate of Taxation dated 9th September 2024.
4. The Advocate’s Application is supported by the affidavit of Abdirizak Roba, also sworn on 19th September 2024. He described himself as an Advocate of the High Court of Kenya but did not disclose his relationship with the Applicant.
5. The Advocate’s application is opposed by the affidavit of SURYAKANTBHAI PATEL sworn on 23rd October 2024.
6. On 15th October 2024, directions were given by this Court that the two applications be canvassed together. The Advocate filed its submissions dated 31st October 2024, both in support of their Notice of Motion Application dated 19.09.2024 and in opposition to the Client’s Reference dated 24th September 2024.
7. On its part, the Client filed two sets of submissions, one dated 18.11.2024 in support of its Reference and the other dated 24th October 2024 in opposition to the Advocate’s Notice of Motion Application.
8. The submissions were highlighted orally in court on 14th November 2024 when Mr. Odegi argued the Client’s case while Mr. Abdirazak argued on behalf of the Advocate.
9. In view of the fact that the Reference by the Client is for setting aside of the Certificate of Taxation, I will first deal with the Client’s application/Reference and will only proceed to consider the proceed and consider the Advocate’s application where the Reference by the Client fails.
10. The Client (hereinafter also referred to as Applicant) avers that on 26th June 2019 lodged an appeal against the decision of the lower court in CMCC No. 2904 of 2013. The appeal did not proceed to a full hearing, and the matter only involved interlocutory applications, which were addressed before the appeal was finalized.
11. On 5th September 2024, the Deputy Registrar proceeded to tax the party and party Bill of costs, awarding costs based on the value of the subject matter despite the matter not proceeding to a full hearing. The applicant avers that the Deputy Registrar lacked the requisite jurisdiction to tax the costs in this matter, as the appeal was filed in the Civil Division and taxation should have been conducted by the Deputy Registrar of Civil Division and not in the Commercial and Tax Division as required under Rule 25 of the High Court (Organization and Administration) Act, 2015.
12. The applicant deposed that the Deputy Registrar of the Commercial & Tax Division overstepped her jurisdiction and acted ultra vires by assuming the jurisdiction and authority to tax a matter from another division, thereby rendering the ruling and subsequent certification of taxation null and void.
13. The applicant avers that the Deputy Registrar, in taxing the Bill of Costs, improperly applied the value of the subject matter to determine the instruction fees, contrary to the established principle that such fees should be based on the actual work done. It was also the Applicant’s position that the Deputy Registrar erred by awarding getting up fees of Kshs. 54,933/= despite the fact that such fees are only applicable in matters that proceed to full hearing.
14. The applicant avers that the Deputy Registrar’s ruling was devoid of sufficient reasoning, failing to outline the basis upon which such excessive fees were awarded, which constitutes a violation of the applicant’s right to a fair hearing. That it is in the interest of justice that the impugned ruling and certificate of taxation be set aside as the costs awarded are disproportionate to the services rendered by the Respondent.
15. The advocate/Respondent filed a Replying affidavit dated 28th October 2024 in response to the chamber summons. In the said response, he avers that the application is misconceived, meritless, frivolous, vexatious, and an abuse of the court process as the applicant has failed to demonstrate that the taxing master either committed errors of principle in the taxation exercise or awarded instruction fees which is manifestly excessive or high that it justifies interference by the Honourable Judge.
16. The Respondent avers that the Client/applicant’s challenge on the taxing officer’s jurisdiction to tax the advocate’s bill of costs on the basis that Civil Appeal No. 345 of 2019 from which the bill arose was filed in the civil division is misplaced.
17. The Respondent maintained that the taxing officer was right in using the value of the subject matter, being Kshs. 3,240,000/=, in determining instruction fees. The Respondent asserts that the applicant has not presented any evidence that its instructions to the advocate were limited to prosecuting the preliminary application dated 13th October 2020 filed in Civil Appeal No. 345 of 2019.
18. According to the Respondent, the Advocate, in executing the Client’s instructions, filed grounds of opposition, replying affidavit and submissions. Consequently, the advocate/Respondent was entitled to full instruction fees having received, perused, and made copies of all documents relating to the appeal.
19. The Respondent asserted that in the plaint dated 17th May 2013 filed by Kenya Airports Parking Services Ltd against the Client in which the Client appealed, the plaintiff had sought Kshs. 3,240,000/= against the Client. It is trite that instruction fees is calculated from the value of the subject matter, which is determined from pleadings, judgment, or settlement.
20. Further, the Respondent submitted that the application is defective for having been filed without leave outside the mandatory 14-day timeline stipulated under Rule 11 of the Advocates Remuneration Order. The Respondent, therefore, urged this court to dismiss the application dated 24th September 2024.
Analysis and Determination
21. I have considered the Client/applicant’s chamber summons application, the response thereto, the rival submissions by both parties, and the cited authorities. The issue relevant for determination is whether the reference application is merited, and if so, whether the Client/applicant is entitled to the orders being sought.
22. Paragraph 11 of the Advocates Remuneration Order provides guidance on the procedure to be followed in objecting to a decision by a taxing officer. It provides as follows;
"1. Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.
2. The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by Chamber Summons, which shall be served on all the parties concerned, setting out the grounds of his objection. (Emphasis added).
3. Any person aggrieved by the decision of the judge upon any objection referred to such judge under subparagraph (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.
4. The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2), [and] may, with the leave of the judge but not otherwise, appeal to the Court of Appeal."
23. Paragraphs 11 (1) and (2) above underscore the fact that any aggrieved party to a Taxing officer’s decision may, within 14 days after the decision, give notice in writing to the Taxing Officer of the items of taxation to which he objects. The party, upon receipt of the Taxing Officer’s reasons for decision, may, within 14 days from receipt of reasons, apply to a Judge by Chamber summons, which shall be served upon all parties concerned, setting out the grounds of his objection.
24. In the present reference, it is not in dispute that the Taxing Officer delivered her ruling on 5th September 2024. The Client/Applicant filed a notice of objection dated 10th September 2024, which was within the 14-day period under Paragraph 11 (1) of the Advocates Remuneration Order.
25. The Client/Applicant had 14 days to file the reference application upon receipt of the reasons from the Taxing Officer. In the absence of any communication from the Taxing Officer, the Client/applicant filed its application on 24th September 2024
26. From the above, it is evident that the reference application was filed within 14 days after the notice of objection in line with Paragraph 11 (2) of the Advocates Remuneration Order.
27. The principles to be considered for setting aside a decision by a Taxing Officer are now well settled. These principles were espoused in the case of First American Bank of Kenya Ltd vs Gulab P. Shah & others (2002) eKLR as follows:
"i. 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 so manifestly excessive as to justify an inference that it was based on an error of principle.
ii. 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 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.
iii. If the court considers that the decision of the Taxing Officer discloses errors of principle, the normal practice is to remit it back to the Taxing Officer for re-assessment 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.
iv. The other general principle is that it is within the discretion of the Taxing Officer to increase or reduce the instruction fees and that the amount of the increase or reduction is discretionary.
v. Taxing Officer must first set out the basic fee before venturing to consider whether to increase or reduce it.
vi. The full instructions 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;
vii. 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 complexity of the matter as it may well be indicative of the advocate’s unfamiliarity with basic principles of law and such unfamiliarity should not be turned into an advantage against the adversary."
28. The principles can be summarized as follows: there was an error of principle, the fees awarded was manifestly excessive or so high, the successful litigant ought to be fairly reimbursed for the costs incurred, and so far as practicable, there should be consistency in the award.
29. From the existing jurisprudence, it is settled that a Judge will only interfere with a Taxing Officer’s decision if it is proved that there was an error in principle in the exercise of discretion. This was the position in Kipkorir, Tito & Kiara Advocates vs Deposit Protection Fund Board (2005)eKLR, where the court held that; -
“On a reference to a judge from the taxation by the taxing officer, the judge will not normally interfere with the exercise of discretion by the taxing officer unless the taxing officer erred in principle in assessing the costs. In Arthur vs. Nyeri Electricity Undertaking [1961] E.A 497 Paragraph I: ‘where there has been an error in principle the court will interfere; but questions solely of quantum are regarded as matters with which the taxing officers are particularly fitted to deal and the court will interfere only in exceptional cases.’ An example of an error of principle is where the costs allowed are so manifestly excessive as to justify an interference that the taxing officer acted on erroneous principles – see Arthur –vs- Electricity Undertaking (supra) and where the taxing officer has overemphasized the difficulties, importance and complexity of the suit (See Devshi Dhanji –vs- Kanji Naran Patel (No.2) [1978] KLR 243).”
30. Having perused the record and noted that the Bill of Costs leading to the impugned ruling was filed in 2024, I find that the applicable law is the Advocates Remuneration Order, 2014 under schedule 6 (B).
31. From the pleadings, it is evident that the value of the subject matter was Kshs. 3, 240,000/= as ascertained by the Taxing Officer in her ruling. The value of the subject matter having been ascertained from the pleadings, the Taxing Officer properly exercised her discretion in determining item 1 on instruction fees.
32. It is, therefore, my finding that the Taxing Officer’s decision awarding instruction fees of Kshs. 164, 800/= was proper and not based on error of principle, neither was the fees awarded excessive as to warrant interference by this Court. Consequently, I find no reason to warrant interference with the finding of the Taxing Officer.
33. On getting up fees, the Advocates Remuneration Order pegs it at one-third of the instruction fees. The Taxing Officer made an award of Kshs. 54, 933/= as getting up fees. The Client/applicant submitted that the matter did not proceed to a full hearing and as such getting up fees is not payable to the advocate. Paragraph 3 Schedule 6 of the Advocates Remuneration Order stipulates as follows:
“In any appeal to the High Court in which a respondent appears at the hearing of the appeal and which the court at the conclusion of the hearing has certified that in view of the extent or difficulty of the work required to be done subsequently to the lodging of the appeal the case is a proper one for consideration of a getting up fee, the taxing officer may allow such a fee in addition to the instruction fee and such a fee shall not be less than one-third of the instruction fee.”
34. The interpretation I gather from Paragraph 3 of Schedule 6 of the Advocates Remuneration Order is that for getting up fees to apply, the court at the conclusion of the hearing, must have certified to a proper case for consideration of getting up fees, taking into account the extent or difficulty of the work required.
35. In Narok County Government v Kemboy Law Advocates (Miscellaneous Application E010 of 2023) [2024] KEELC 4497 (KLR) (3 June 2024) (Ruling) the Court stated as follows on the issue; -
“32. The Court’s understanding of the above provision of the Advocates (Remuneration) (Amendment) Order, 2014 is that getting up fees is actually payable to an Advocate but only if the same is certified by the Court based on the extend and difficulty of the work down in lodging and handling the Appeal.
33. Consequently, a Taxing Officer can only award getting up fees if there is a certification by the Appellate Judge that such an Appeal was of a difficult nature in its preparation and subsequent prosecution to warrant the getting up fee.
34. In this respect, a perusal of the proceedings in the Appeal file does not show that these proceedings were certified by the Judge that the Advocate is entitled to getting up fees.
35. In essence, the Taxing officer misdirected herself in awarding the getting up fees of Kshs 1,500,000/- to the Respondent without a certification by the Court in line with the above provision.”
36. In view of the above, I find that the Taxing officer misdirected herself and erred in law when she proceeded to allow getting up fees without certification of the court.
37. Finally, it is critical that I address the Applicant’s allegation that it was an error of law that the Bill of costs was taxed by a Deputy Registrar from the Commercial and Tax Division other than one from the Civil Division where the primary suit had been instituted.
38. Section 21(2) of the High Court (Organization and Administration) Act states as that;
“In relation to the proceedings before the Court, the Deputy Registrar may consider and dispose off procedural or administrative matters in accordance with the Rules or on the direction of the Principal Judge.”
39. From the above, it is clear that the Act does not make any distinction between the Deputy Registrars depending on their respective stations/divisions. It therefore follows that a Deputy Registrar from the Commercial Division may very well tax Bill of Costs from the Civil Division, and vice versa.
40. The Client’s Reference having succeeded, the Advocate’s Notice of Motion Application dated 19th September 2024 therefore falls by the wayside and cannot be considered.
41. The Upshot of the above is that the reference application is merited, and it is hereby allowed in the following terms:
a. The Advocate’s Notice of Motion Applicated dated 19th September 2024 is hereby dismissed.
b. The Client’s Chamber Summons Application/Reference dated 24th September 2024 succeeds, but only to the extent that the decision by the Taxing Officer dated 5th September 2024 awarding getting up fees is hereby set aside.
c. The Bill of Costs dated 11th July 2024 be and is hereby re-assessed by removing the getting up fees of Kshs. 54,933/-.
d. The matter is returned to the Taxing Officer to tax off getting up fees and issue the new Certificate of Costs in compliance with this ruling.
e. Each party shall bear their own costs.
42. It is so ordered.
43. This file is closed.
SIGNED, DATED and DELIVERED IN VIRTUAL COURT
THIS 27TH DAY OF FEBRUARY 2025
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant
Duba h/b for Odinga.………. Advocate
N/A………...for the Respondent