1. For determination is the defendant’s chamber summons application dated 8/3/2024 in which it sought the following orders:-
“ 1. THAT this Honourable Court be pleased to review and/or set aside the decision of the Taxing Master, Hon. Stephany Bett, as relates to items 1, 2, 46 and 54 issued in the ruling of 16th February 2024 in respect of the Bill of Costs dated 31st July 2023.
2. THAT this Honourable Court be pleased to re-assess the fees due to the Defendant/Applicant in respect of items 1,2, 46 and 54 of Bill of Costs dated 31st July 2023 and make findings on the same.
3. THAT in the alternative and without prejudice to the foregoing, this Honourable Court be pleased to remit the Bill of Costs to another Taxing Officer for review and reconsideration with direction on taxation of items 1, 2, 46 and 54.
4. THAT this Honourable Court be pleased to make such other and/or further orders as it may deem just and fit to grant.
5. THAT the costs of this Application be provided for.”
2. The application was supported by an affidavit sworn by Patrick Mweu Musimba, its director. The grounds of the application included that that the taxing master erred in both law and principle in the taxation of specific items, namely items 1, 2, 46, and 54.
3. In particular, the taxing master was said to have wrongly assessed the instruction fees by applying an outdated exchange rate of USD to KES from 2008 instead of the rate prevailing at the time of the judgment. Furthermore, it was asserted that the taxing master failed to take into account the interest component of the plaintiff’s claim when determining the value of the subject matter, despite the interest being quantifiable. This, according to the plaintiff, led to an incorrect valuation and, by extension, an erroneous computation of the getting-up fee.
4. The defendant also contended that the taxing master failed to award costs on items 46 and 54 on a higher scale, despite the fact that the suit was defended and involved full-day court attendance and detailed submissions from both parties. Additionally, the taxing master was said to have disregarded the applicable legal principles under Schedule 6 of the Advocates (Remuneration) Order and failed to consider the defendant’s written submissions on the bill of costs.
5. In opposition to the instant application, the plaintiff filed a replying affidavit sworn on 8/5/2024 by Benjamin O. Orndorff, a resident of Mercer Island, WA, USA, and a board member at the Plaintiff.
6. Mr. Orndorff believed that the application was legally flawed, misconceived, and an abuse of the court process, containing several misrepresentations and omissions of key facts.
7. He recalled that the plaintiff filed the original suit on 17/9/2008, seeking payment of $3,755,686.51 with interest at the rate of 0.5% from 1 June 2008 until payment in full. The case proceeded to hearing, but on 21/7/2023, the court dismissed the suit for lack of locus standi. Following this, the defendant filed a bill of costs amounting to Kshs. 28,104,809.00.
8. It was averred that the plaintiff opposed the bill of costs and submitted arguments and authorities on 15/11/2023 and the deputy registrar after considering both parties' submissions, issued a ruling on 16/2/2024 assessing the defendant’s bill at Kshs. 8,091,759.10. The assessment was based on the 2006 Advocates Remuneration Order, and the registrar excluded interest from the subject matter value for cost assessment.
9. Mr. Orndorff noted that the defendant’s challenge was limited to specific items: instruction fees, getting up fees, and two attendances, alleging legal and procedural errors. However, he argued that the deputy registrar properly considered all relevant factors, including the value at the time of filing and court attendances, and had correctly exercised her discretion.
10. He rejected the defendant's claims regarding the use of an incorrect exchange rate and the failure to include interest in calculating the subject matter value. He asserted that these claims were either unsubstantiated, raised too late, or legally unfounded. He also dismissed allegations that the deputy registrar violated the Advocates Remuneration Order by not awarding higher scale costs, noting that no specific legal provisions or court orders had been cited to support the claim.
11. He emphasized that the taxing master had acted within her discretion when assessing fees related to court attendances and that the defendant had failed to justify any errors or misdirection warranting the court’s intervention.
12. The plaintiff filed grounds of opposition dated 16/7/2024 in further opposition to the instant application.
13. The plaintiff opposed the defendant’s application on several grounds. The plaintiff argued that the court could only interfere with the decision of the taxing master if it was shown that she had considered irrelevant factors or failed to consider relevant ones. It was asserted that the defendant had not demonstrated any misdirection, improper exercise of discretion, or unreasonable award in respect of instruction or getting-up fees that would justify the court’s intervention.
14. The plaintiff maintained that the deputy registrar had correctly inquired into the amount claimed in Kenyan shillings as at the date of filing the suit to determine the value of the subject matter. The plaintiff further contended that the defendant’s argument concerning the use of an exchange rate from 2019 was misplaced, as it had not been raised before the deputy registrar and was being introduced belatedly and in bad faith.
15. Additionally, the plaintiff rejected the defendant’s claim that the taxing master erred by failing to include interest in the valuation of the subject matter, stating that the allegation lacked legal and factual basis. The plaintiff also argued that the claim regarding the violation of the Advocates Remuneration Order was unfounded due to the absence of any reference to a specific breached provision.
16. It was further asserted that the taxing master had reviewed the relevant proceedings when assessing attendance costs and that the defendant had failed to show any error in the calculations or misuse of discretion. Lastly, the plaintiff noted that although the defendant sought taxation on a higher scale under section 50A of the Advocates (Remuneration) Order, no court order had been provided to support this claim.
17. For these reasons, the plaintiff sought the dismissal of the defendant’s application with costs.
18. The defendant filed a supplementary affidavit sworn on 6/7/2024 by its director. The affidavit was filed in response to the plaintiff’s replying affidavit sworn on 8/5/2024.
19. He reiterated the contents of his initial supporting affidavit and challenged the validity of the plaintiff’s replying affidavit. He argued that it was fatally defective because it had been sworn before a notary public in Washington State, USA, without proper evidence proving the authority of the said notary, Bradley J. Nitta. He contended that since it was a foreign document, it required additional authentication to be admissible in Kenyan courts, such as a certificate proving the notarial act.
20. He further maintained that the name of the deponent did not appear on the jurat, which undermined the authenticity of the affidavit. He asserted that article 159 of the Constitution could not cure these defects, as Section 88 of the Evidence Act governed admissibility and required proper verification for foreign affidavits.
21. Responding to the substance of the replying affidavit, the defendant’s director clarified the nature and progression of the original suit, including the substitution of NOKIA CORPORATION with the current plaintiff in December 2019 and the monetary claims therein. He maintained that the judgment delivered included interest, and thus the issue of interest was integral to the matter.
22. He confirmed that the defendant had filed a party and party Bill of Costs in July 2023 and that it had been taxed in February 2024. However, he took issue with the taxing master’s application of the exchange rate from 2008 instead of using the current rate at the time of judgment, which he believed led to an erroneous valuation of the subject matter. He insisted that the proper exchange rate should have been that on the date of judgment, as this would have been applied if the plaintiff had succeeded.
23. He further argued that the amendment of the plaint in 2019 rendered the original plaint irrelevant for calculating instruction fees, and that the Advocates Remuneration Order applicable at the time of the amendment should govern the fees. He denied several assertions made in the replying affidavit and accused the plaintiff of presenting misleading information.
24. In conclusion, he urged the Court to strike out the plaintiff's replying affidavit and to find merit in the instant application.
Analysis and determination:
25. In support of the subject application, the defendant filed written submissions dated 12/7/2024 and 6/11/2024, while the plaintiff filed submissions dated 5/12/2024.
26. The court has analysed and considered the aforementioned submissions and the pleadings as filed by the parties in this matter.
27. The first issue for determination is whether the plaintiff’s replying affidavit ought to be struck out.
28. The defendant pleaded that the court ought to strike out the plaintiff’s replying affidavit as the same is incurably defective, as the same was sworn before a notary public in the state of Washington, USA, however there was no evidence tabled that the said notary had the authority to notraise.
29. The defendant pleaded further that the name of the deponent did not appear on the jurat, which undermined the authenticity of the affidavit.
30. On its part, the plaintiff submitted that by inviting this court to strike out the replying affidavit, the defendant was seeking a draconian measure, which should be exercised only as a last resort and that the applicant ought to have filed a formal application to strike out the affidavit, rather than raising this issue within the supplementary affidavit and submissions.
31. Section 88 of the Evidence Act states:
“When any document is produced before any court, purporting to be a document which, by the law in force for the time being in England, would be admissible in proof of any particular in any Court of Justice in England, without proof of the seal or stamp or signature authenticating it, or of the judicial or official character claimed by the person by whom it purports to be signed—
(a) the court shall presume that such seal, stamp or signature is genuine, and that the person signing it held, at the time when he signed it, the judicial or official character which he claims in such document; and
(b) the document shall be admissible for the same purpose for which it would be admissible in England.”
32. The import of this provision is that documents from Commonwealth countries are admissible without additional authentication, provided they are admissible in English Courts. Documents from non-Commonwealth countries would have to be authenticated in order to be admissible in Kenyan courts.
33. This was emphasized in the case of Peeraj General Trading & Contracting Company Limited, Kenya & another v Mumia Sugar Company Limited [2016] eKLR, wherein the Court held that documents notarized outside commonwealth countries have to be proved by Affidavit or otherwise as follows:
“I am in total agreement with the reasoning of Ringera J. (as he then was) and I do adopt the same herein. Indeed, Section 88 of the Evidence Act, Cap 80 of the Laws of Kenya provides that documents which would be admissible in the English Courts of Justice are admissible in Kenyan Courts without proof of the seal or stamp or signature authenticating it or of the judicial or official character claimed by the person by whom it purports to be signed. In England by virtue of Order 41 rule 12 of the Rules of the Supreme Court, affidavits taken in Commonwealth countries are admissible in evidence without proof of the stamp, seal or the official position of the person taking the affidavit. The same position obtains in Kenya. As there is no such presumption in favour of documents made outside the Commonwealth, it follows that the affidavit in the instant case which was taken in Dubai, in the United Arab Emirates, would have to be proved by affidavit or otherwise to have been taken by a Notary Public in UAE and that the signature and seal of attestation affixed thereto was that of such Notary Public..”
34. The replying affidavit sworn on 8/5/2024 by Benjamin O. Orndorff was sworn before a notary public, Bradley J Nitta, in the state of Washington, USA, a non-Commonwealth country. However, an affidavit or a certificate of notarization was not produced before this court to prove that the said notary had the authority to carry out the alleged notarial act. There was no authentication of the notarization as is required by the law.
35. Another flaw in the replying affidavit is that the deponent’s name is absent in the jurat section of the affidavit. I agree with the submissions of the defendant that it is critical to have the name of the deponent in the jurat in order to confirm that he/she is the person who swore the affidavit.
36. I am of the view that the shortcomings in the replying affidavit are not mere technicalities that can be cured by Article 159 of the Constitution. As such, I strike out the said affidavit by the plaintiff.
37. However, the plaintiff’s grounds of opposition dated 16/7/2024 will serve as its defence against the instant application.
38. The second issue for determination is whether the taxing officer erred in the law and principle while taxing the defendant’s bill of costs and thereby reached a wrong assessment.
39. The defendant seeks to set aside and/or review the decision of the deputy registrar dated 16/2/2024, which taxed its party and party bill of costs at Kshs 8,019,759.0. The defendant particularly seeks to have items 1, 2, 46, and 54 in its party and party bill of costs dated 31/7/2023 reassessed.
40. Regarding Item 1 (instruction fees), the deputy registrar found the value of the subject matter, for the purpose of calculating instruction fees, from the plaint dated 18/9/2008 to be USD 3,755,686.51. She proceeded to calculate the equivalent of the said sum to Kenya Shillings using the exchange rate of Kshs.71.86/= which amounted to Kshs.269,883,633/-.
41. The taxing master did not include interest in the value of the subject matter as the same was not awarded in the judgment of the court, which dismissed the suit on the basis that the plaintiff did not have locus to institute the suit.
42. Guided by Schedule 6 of the Advocates Remuneration Order 2006 and her discretion, the deputy registrar taxed the instruction fees at Kshs. 6,000,000.
43. The defendant submitted that the deputy registrar wrongly assessed the instruction fees by applying an outdated exchange rate of USD to KES from 2008 instead of the rate prevailing at the time of the judgment and that the taxing master failed to take into account the interest component of the plaintiff’s claim when determining the value of the subject matter, despite the interest being quantifiable.
44. In the Court of Appeal case of Joreth Limited v Kigano & Associates [2002] eKLR, the court held that the value of the subject matter of a suit for the purposes of taxation of a bill of costs ought to be determined from the pleadings, judgement or settlement (if such be the case) but if the same is not so ascertainable the taxing officer is entitled to use his discretion to assess such instruction fee as he considers just, taking into account, amongst other matters, the nature and importance of the cause or matter, the interest of the parties, the general conduct of the proceedings, any directions by the trial judge and all other relevant circumstances.
45. In this case, the judgment delivered by the court on 21/7/2023 dismissed the plaintiff’s suit for lack of locus standi. The court did not award any amount to the defendant. As such, the value of the subject matter cannot be obtained from the judgment. However, guided by the authority above, the value may be obtained from the pleadings filed. It was therefore justifiable for the deputy registrar to obtain the value of the subject matter from the plaint dated 18/9/2008.
46. As for interest, the court did not award interest in its judgement dated 21/7/2023, and therefore the deputy registrar could not include interest in the value of the subject matter as the suit was dismissed on the grounds that the plaintiff did not have locus to institute the suit.
47. In the case of Rachuonyo & Rachuonyo Advocates v Kenya National Capital Corporation Limited [2022] KEHC 3324 (KLR), the court held:
“ When the law talks about identifying the value of the subject from the pleadings, judgment or settlement, that cannot certainly include interest. Allowing interest to be taken into account as forming part of the value of the subject matter would be stretching the meaning of value of subject matter identifiable from pleadings, judgment or settlement too far. Allowing such an approach, nothing would stop a taxing officer from taking into account costs awarded as forming part of the value of the subject.”
48. On the issue of the rate of exchange used, I am of the view that the deputy registrar was correct in inquiring into the amount claimed in Kenya Shillings as at the date of filing the suit to determine the value of the subject matter. The defendant’s argument that the exchange rate ought to have been obtained in 2019 does not hold any water as this argument was not initially tabled before the deputy registrar prior to the taxation.
49. Based on the foregoing, I find no reason to interfere with the deputy registrar’s computation of instruction fees.
50. On Item 2, getting-up fees. This is usually calculated as ⅓ of the instruction fees. Having found that the taxing master arrived at the correct figure for instruction fees, I am of the view that the getting-up fees was also properly calculated.
51. Lastly, the defendant challenged the taxation of items 46 and 54 of their bill of costs.
52. The defendant contended that the taxing master failed to award costs on items 46 and 54 on a higher scale, despite the fact that the suit was defended and involved full-day court attendance and detailed submissions from both parties. Additionally, it was claimed that the taxing master disregarded the applicable legal principles under Schedule 6 of the Advocates (Remuneration) Order and failed to consider the defendant’s written submissions on the bill of costs.
53. I note that in the bill of costs, under item 46, the defendant billed the amount of Kshs.15,000 for court attendance of the main hearing. Under Item 54, the defendant sought Kshs.7,100 for the highlighting of submissions.
54. The deputy registrar taxed the two items at Kshs.10,000 and Kshs.2,300 respectively pursuant to schedule 6 paragraph 7 of the Advocates Remuneration Order 2014.
55. The defendant alleged that the taxing master erred by failing to award costs on a higher scale for items 46 and 54. However, it has not specified the provisions of the Order that were in violation. The defendant has also not shown how the calculation of attendance fees was erroneous or not based on the discretionary powers vested in the deputy registrar.
56. The principles that guide this Court when considering a reference from the decision of a taxing officer are that matters of quantum of taxation belong in the province and competence of a taxing master, and that the High Court, on a reference, should be slow to interfere. See the case of Peter Muthoka & another v Ochieng & 3 others [2019] eKLR, where the Court of Appeal held: -
“It is not lost to us … that matters of quantum of taxation properly belong in the province and competence of taxing masters. They fall within their discretion and so the High Court upon a reference will be slow to interfere with them. It is not a wild and unaccountable discretion, however, because it is at its core and by definition a judicial discretion to be exercised, not capriciously at a whim, but on settled principles. When it is shown that there was a misdirection on some matter resulting in a wrong decision, or it is manifest from the case as a whole that the discretion was improperly exercised, resulting in mis-justice, to borrow the holding in MBOGO -vs- SHAH (Supra), then the decision though discretionary, may properly be interfered with. See also ATTORNEY GENERAL OF KENYA -vs- PROF. ANYANG’ NYONG’O & 10 OTHERS, EACJ App. No. 1 OF 2009.”
57. In this case, I find that the defendant has failed to demonstrate to this court any reason why I should interfere with the discretion of the taxing master. The mere fact that the deputy registrar taxed off the amounts sought is not ground enough for this court to interfere with the taxing master’s discretion. In any event, I do not find the reduction by the taxing master too huge as to amount to an error of principle.
58. In the premises, I find that the deputy registrar’s taxation was sound and in accordance with the legal procedure and precedent. I find no reason to disturb the award.
59. Accordingly, the application before me is dismissed with costs awarded to the plaintiff.
60. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT
THIS 29TH DAY OF MAY 2025
ADO MOSES
In the presence of:
Moses………….C/A
Muthoni…………For Applicant
Okeyo………………………..For the Respondent
“ 1. THAT this Honourable Court be pleased to review and/or set aside the decision of the Taxing Master, Hon. Stephany Bett, as relates to items 1, 2, 46 and 54 issued in the ruling of 16th February 2024 in respect of the Bill of Costs dated 31st July 2023.
2. THAT this Honourable Court be pleased to re-assess the fees due to the Defendant/Applicant in respect of items 1,2, 46 and 54 of Bill of Costs dated 31st July 2023 and make findings on the same.
3. THAT in the alternative and without prejudice to the foregoing, this Honourable Court be pleased to remit the Bill of Costs to another Taxing Officer for review and reconsideration with direction on taxation of items 1, 2, 46 and 54.
4. THAT this Honourable Court be pleased to make such other and/or further orders as it may deem just and fit to grant.
5. THAT the costs of this Application be provided for.”
2. The application was supported by an affidavit sworn by Patrick Mweu Musimba, its director. The grounds of the application included that that the taxing master erred in both law and principle in the taxation of specific items, namely items 1, 2, 46, and 54.
3. In particular, the taxing master was said to have wrongly assessed the instruction fees by applying an outdated exchange rate of USD to KES from 2008 instead of the rate prevailing at the time of the judgment. Furthermore, it was asserted that the taxing master failed to take into account the interest component of the plaintiff’s claim when determining the value of the subject matter, despite the interest being quantifiable. This, according to the plaintiff, led to an incorrect valuation and, by extension, an erroneous computation of the getting-up fee.
4. The defendant also contended that the taxing master failed to award costs on items 46 and 54 on a higher scale, despite the fact that the suit was defended and involved full-day court attendance and detailed submissions from both parties. Additionally, the taxing master was said to have disregarded the applicable legal principles under Schedule 6 of the Advocates (Remuneration) Order and failed to consider the defendant’s written submissions on the bill of costs.
5. In opposition to the instant application, the plaintiff filed a replying affidavit sworn on 8/5/2024 by Benjamin O. Orndorff, a resident of Mercer Island, WA, USA, and a board member at the Plaintiff.
6. Mr. Orndorff believed that the application was legally flawed, misconceived, and an abuse of the court process, containing several misrepresentations and omissions of key facts.
7. He recalled that the plaintiff filed the original suit on 17/9/2008, seeking payment of $3,755,686.51 with interest at the rate of 0.5% from 1 June 2008 until payment in full. The case proceeded to hearing, but on 21/7/2023, the court dismissed the suit for lack of locus standi. Following this, the defendant filed a bill of costs amounting to Kshs. 28,104,809.00.
8. It was averred that the plaintiff opposed the bill of costs and submitted arguments and authorities on 15/11/2023 and the deputy registrar after considering both parties' submissions, issued a ruling on 16/2/2024 assessing the defendant’s bill at Kshs. 8,091,759.10. The assessment was based on the 2006 Advocates Remuneration Order, and the registrar excluded interest from the subject matter value for cost assessment.
9. Mr. Orndorff noted that the defendant’s challenge was limited to specific items: instruction fees, getting up fees, and two attendances, alleging legal and procedural errors. However, he argued that the deputy registrar properly considered all relevant factors, including the value at the time of filing and court attendances, and had correctly exercised her discretion.
10. He rejected the defendant's claims regarding the use of an incorrect exchange rate and the failure to include interest in calculating the subject matter value. He asserted that these claims were either unsubstantiated, raised too late, or legally unfounded. He also dismissed allegations that the deputy registrar violated the Advocates Remuneration Order by not awarding higher scale costs, noting that no specific legal provisions or court orders had been cited to support the claim.
11. He emphasized that the taxing master had acted within her discretion when assessing fees related to court attendances and that the defendant had failed to justify any errors or misdirection warranting the court’s intervention.
12. The plaintiff filed grounds of opposition dated 16/7/2024 in further opposition to the instant application.
13. The plaintiff opposed the defendant’s application on several grounds. The plaintiff argued that the court could only interfere with the decision of the taxing master if it was shown that she had considered irrelevant factors or failed to consider relevant ones. It was asserted that the defendant had not demonstrated any misdirection, improper exercise of discretion, or unreasonable award in respect of instruction or getting-up fees that would justify the court’s intervention.
14. The plaintiff maintained that the deputy registrar had correctly inquired into the amount claimed in Kenyan shillings as at the date of filing the suit to determine the value of the subject matter. The plaintiff further contended that the defendant’s argument concerning the use of an exchange rate from 2019 was misplaced, as it had not been raised before the deputy registrar and was being introduced belatedly and in bad faith.
15. Additionally, the plaintiff rejected the defendant’s claim that the taxing master erred by failing to include interest in the valuation of the subject matter, stating that the allegation lacked legal and factual basis. The plaintiff also argued that the claim regarding the violation of the Advocates Remuneration Order was unfounded due to the absence of any reference to a specific breached provision.
16. It was further asserted that the taxing master had reviewed the relevant proceedings when assessing attendance costs and that the defendant had failed to show any error in the calculations or misuse of discretion. Lastly, the plaintiff noted that although the defendant sought taxation on a higher scale under section 50A of the Advocates (Remuneration) Order, no court order had been provided to support this claim.
17. For these reasons, the plaintiff sought the dismissal of the defendant’s application with costs.
18. The defendant filed a supplementary affidavit sworn on 6/7/2024 by its director. The affidavit was filed in response to the plaintiff’s replying affidavit sworn on 8/5/2024.
19. He reiterated the contents of his initial supporting affidavit and challenged the validity of the plaintiff’s replying affidavit. He argued that it was fatally defective because it had been sworn before a notary public in Washington State, USA, without proper evidence proving the authority of the said notary, Bradley J. Nitta. He contended that since it was a foreign document, it required additional authentication to be admissible in Kenyan courts, such as a certificate proving the notarial act.
20. He further maintained that the name of the deponent did not appear on the jurat, which undermined the authenticity of the affidavit. He asserted that article 159 of the Constitution could not cure these defects, as Section 88 of the Evidence Act governed admissibility and required proper verification for foreign affidavits.
21. Responding to the substance of the replying affidavit, the defendant’s director clarified the nature and progression of the original suit, including the substitution of NOKIA CORPORATION with the current plaintiff in December 2019 and the monetary claims therein. He maintained that the judgment delivered included interest, and thus the issue of interest was integral to the matter.
22. He confirmed that the defendant had filed a party and party Bill of Costs in July 2023 and that it had been taxed in February 2024. However, he took issue with the taxing master’s application of the exchange rate from 2008 instead of using the current rate at the time of judgment, which he believed led to an erroneous valuation of the subject matter. He insisted that the proper exchange rate should have been that on the date of judgment, as this would have been applied if the plaintiff had succeeded.
23. He further argued that the amendment of the plaint in 2019 rendered the original plaint irrelevant for calculating instruction fees, and that the Advocates Remuneration Order applicable at the time of the amendment should govern the fees. He denied several assertions made in the replying affidavit and accused the plaintiff of presenting misleading information.
24. In conclusion, he urged the Court to strike out the plaintiff's replying affidavit and to find merit in the instant application.
Analysis and determination:
25. In support of the subject application, the defendant filed written submissions dated 12/7/2024 and 6/11/2024, while the plaintiff filed submissions dated 5/12/2024.
26. The court has analysed and considered the aforementioned submissions and the pleadings as filed by the parties in this matter.
27. The first issue for determination is whether the plaintiff’s replying affidavit ought to be struck out.
28. The defendant pleaded that the court ought to strike out the plaintiff’s replying affidavit as the same is incurably defective, as the same was sworn before a notary public in the state of Washington, USA, however there was no evidence tabled that the said notary had the authority to notraise.
29. The defendant pleaded further that the name of the deponent did not appear on the jurat, which undermined the authenticity of the affidavit.
30. On its part, the plaintiff submitted that by inviting this court to strike out the replying affidavit, the defendant was seeking a draconian measure, which should be exercised only as a last resort and that the applicant ought to have filed a formal application to strike out the affidavit, rather than raising this issue within the supplementary affidavit and submissions.
31. Section 88 of the Evidence Act states:
“When any document is produced before any court, purporting to be a document which, by the law in force for the time being in England, would be admissible in proof of any particular in any Court of Justice in England, without proof of the seal or stamp or signature authenticating it, or of the judicial or official character claimed by the person by whom it purports to be signed—
(a) the court shall presume that such seal, stamp or signature is genuine, and that the person signing it held, at the time when he signed it, the judicial or official character which he claims in such document; and
(b) the document shall be admissible for the same purpose for which it would be admissible in England.”
32. The import of this provision is that documents from Commonwealth countries are admissible without additional authentication, provided they are admissible in English Courts. Documents from non-Commonwealth countries would have to be authenticated in order to be admissible in Kenyan courts.
33. This was emphasized in the case of Peeraj General Trading & Contracting Company Limited, Kenya & another v Mumia Sugar Company Limited [2016] eKLR, wherein the Court held that documents notarized outside commonwealth countries have to be proved by Affidavit or otherwise as follows:
“I am in total agreement with the reasoning of Ringera J. (as he then was) and I do adopt the same herein. Indeed, Section 88 of the Evidence Act, Cap 80 of the Laws of Kenya provides that documents which would be admissible in the English Courts of Justice are admissible in Kenyan Courts without proof of the seal or stamp or signature authenticating it or of the judicial or official character claimed by the person by whom it purports to be signed. In England by virtue of Order 41 rule 12 of the Rules of the Supreme Court, affidavits taken in Commonwealth countries are admissible in evidence without proof of the stamp, seal or the official position of the person taking the affidavit. The same position obtains in Kenya. As there is no such presumption in favour of documents made outside the Commonwealth, it follows that the affidavit in the instant case which was taken in Dubai, in the United Arab Emirates, would have to be proved by affidavit or otherwise to have been taken by a Notary Public in UAE and that the signature and seal of attestation affixed thereto was that of such Notary Public..”
34. The replying affidavit sworn on 8/5/2024 by Benjamin O. Orndorff was sworn before a notary public, Bradley J Nitta, in the state of Washington, USA, a non-Commonwealth country. However, an affidavit or a certificate of notarization was not produced before this court to prove that the said notary had the authority to carry out the alleged notarial act. There was no authentication of the notarization as is required by the law.
35. Another flaw in the replying affidavit is that the deponent’s name is absent in the jurat section of the affidavit. I agree with the submissions of the defendant that it is critical to have the name of the deponent in the jurat in order to confirm that he/she is the person who swore the affidavit.
36. I am of the view that the shortcomings in the replying affidavit are not mere technicalities that can be cured by Article 159 of the Constitution. As such, I strike out the said affidavit by the plaintiff.
37. However, the plaintiff’s grounds of opposition dated 16/7/2024 will serve as its defence against the instant application.
38. The second issue for determination is whether the taxing officer erred in the law and principle while taxing the defendant’s bill of costs and thereby reached a wrong assessment.
39. The defendant seeks to set aside and/or review the decision of the deputy registrar dated 16/2/2024, which taxed its party and party bill of costs at Kshs 8,019,759.0. The defendant particularly seeks to have items 1, 2, 46, and 54 in its party and party bill of costs dated 31/7/2023 reassessed.
40. Regarding Item 1 (instruction fees), the deputy registrar found the value of the subject matter, for the purpose of calculating instruction fees, from the plaint dated 18/9/2008 to be USD 3,755,686.51. She proceeded to calculate the equivalent of the said sum to Kenya Shillings using the exchange rate of Kshs.71.86/= which amounted to Kshs.269,883,633/-.
41. The taxing master did not include interest in the value of the subject matter as the same was not awarded in the judgment of the court, which dismissed the suit on the basis that the plaintiff did not have locus to institute the suit.
42. Guided by Schedule 6 of the Advocates Remuneration Order 2006 and her discretion, the deputy registrar taxed the instruction fees at Kshs. 6,000,000.
43. The defendant submitted that the deputy registrar wrongly assessed the instruction fees by applying an outdated exchange rate of USD to KES from 2008 instead of the rate prevailing at the time of the judgment and that the taxing master failed to take into account the interest component of the plaintiff’s claim when determining the value of the subject matter, despite the interest being quantifiable.
44. In the Court of Appeal case of Joreth Limited v Kigano & Associates [2002] eKLR, the court held that the value of the subject matter of a suit for the purposes of taxation of a bill of costs ought to be determined from the pleadings, judgement or settlement (if such be the case) but if the same is not so ascertainable the taxing officer is entitled to use his discretion to assess such instruction fee as he considers just, taking into account, amongst other matters, the nature and importance of the cause or matter, the interest of the parties, the general conduct of the proceedings, any directions by the trial judge and all other relevant circumstances.
45. In this case, the judgment delivered by the court on 21/7/2023 dismissed the plaintiff’s suit for lack of locus standi. The court did not award any amount to the defendant. As such, the value of the subject matter cannot be obtained from the judgment. However, guided by the authority above, the value may be obtained from the pleadings filed. It was therefore justifiable for the deputy registrar to obtain the value of the subject matter from the plaint dated 18/9/2008.
46. As for interest, the court did not award interest in its judgement dated 21/7/2023, and therefore the deputy registrar could not include interest in the value of the subject matter as the suit was dismissed on the grounds that the plaintiff did not have locus to institute the suit.
47. In the case of Rachuonyo & Rachuonyo Advocates v Kenya National Capital Corporation Limited [2022] KEHC 3324 (KLR), the court held:
“ When the law talks about identifying the value of the subject from the pleadings, judgment or settlement, that cannot certainly include interest. Allowing interest to be taken into account as forming part of the value of the subject matter would be stretching the meaning of value of subject matter identifiable from pleadings, judgment or settlement too far. Allowing such an approach, nothing would stop a taxing officer from taking into account costs awarded as forming part of the value of the subject.”
48. On the issue of the rate of exchange used, I am of the view that the deputy registrar was correct in inquiring into the amount claimed in Kenya Shillings as at the date of filing the suit to determine the value of the subject matter. The defendant’s argument that the exchange rate ought to have been obtained in 2019 does not hold any water as this argument was not initially tabled before the deputy registrar prior to the taxation.
49. Based on the foregoing, I find no reason to interfere with the deputy registrar’s computation of instruction fees.
50. On Item 2, getting-up fees. This is usually calculated as ⅓ of the instruction fees. Having found that the taxing master arrived at the correct figure for instruction fees, I am of the view that the getting-up fees was also properly calculated.
51. Lastly, the defendant challenged the taxation of items 46 and 54 of their bill of costs.
52. The defendant contended that the taxing master failed to award costs on items 46 and 54 on a higher scale, despite the fact that the suit was defended and involved full-day court attendance and detailed submissions from both parties. Additionally, it was claimed that the taxing master disregarded the applicable legal principles under Schedule 6 of the Advocates (Remuneration) Order and failed to consider the defendant’s written submissions on the bill of costs.
53. I note that in the bill of costs, under item 46, the defendant billed the amount of Kshs.15,000 for court attendance of the main hearing. Under Item 54, the defendant sought Kshs.7,100 for the highlighting of submissions.
54. The deputy registrar taxed the two items at Kshs.10,000 and Kshs.2,300 respectively pursuant to schedule 6 paragraph 7 of the Advocates Remuneration Order 2014.
55. The defendant alleged that the taxing master erred by failing to award costs on a higher scale for items 46 and 54. However, it has not specified the provisions of the Order that were in violation. The defendant has also not shown how the calculation of attendance fees was erroneous or not based on the discretionary powers vested in the deputy registrar.
56. The principles that guide this Court when considering a reference from the decision of a taxing officer are that matters of quantum of taxation belong in the province and competence of a taxing master, and that the High Court, on a reference, should be slow to interfere. See the case of Peter Muthoka & another v Ochieng & 3 others [2019] eKLR, where the Court of Appeal held: -
“It is not lost to us … that matters of quantum of taxation properly belong in the province and competence of taxing masters. They fall within their discretion and so the High Court upon a reference will be slow to interfere with them. It is not a wild and unaccountable discretion, however, because it is at its core and by definition a judicial discretion to be exercised, not capriciously at a whim, but on settled principles. When it is shown that there was a misdirection on some matter resulting in a wrong decision, or it is manifest from the case as a whole that the discretion was improperly exercised, resulting in mis-justice, to borrow the holding in MBOGO -vs- SHAH (Supra), then the decision though discretionary, may properly be interfered with. See also ATTORNEY GENERAL OF KENYA -vs- PROF. ANYANG’ NYONG’O & 10 OTHERS, EACJ App. No. 1 OF 2009.”
57. In this case, I find that the defendant has failed to demonstrate to this court any reason why I should interfere with the discretion of the taxing master. The mere fact that the deputy registrar taxed off the amounts sought is not ground enough for this court to interfere with the taxing master’s discretion. In any event, I do not find the reduction by the taxing master too huge as to amount to an error of principle.
58. In the premises, I find that the deputy registrar’s taxation was sound and in accordance with the legal procedure and precedent. I find no reason to disturb the award.
59. Accordingly, the application before me is dismissed with costs awarded to the plaintiff.
60. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT
THIS 29TH DAY OF MAY 2025
ADO MOSES
In the presence of:
Moses………….C/A
Muthoni…………For Applicant
Okeyo………………………..For the Respondent