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JudgmentWILSON ONDICHO MBOGA VS JEREMIAH OSINDI SASI7 min read

WILSON ONDICHO MBOGA VS JEREMIAH OSINDI SASI

High Court at Nyamira High Court · · Wilfrida A. Okwany


Introduction

  1. The Respondent herein was the Plaintiff before the trial court in Nyamira CMCCC No. 151 of 2018 where he sued the Appellant/Applicant for damages arising out of a road traffic accident.
  2. The lower court entered judgment in favour of the Respondent (Plaintiff) thus precipitating the filing of the instant appeal (by the Appellant herein) and a cross-appeal (by the Respondent).
  3. In a judgment rendered on 4th May 2023, the cross-appeal was dismissed but the appeal was allowed with half the costs being awarded to the Appellant. 
  4. The Respondent’s bill of costs was subsequently taxed at Kshs. 192,832/=.

The Application

  1. Aggrieved by the trial court’s taxation of the Respondent’s costs, the Appellant filed the Application dated 28th September 2023 seeking inter alia, the following orders: -
      1. Spent;
      2. Spent;
      3. Spent;
      4. That the Honourable Court be pleased to issue an order of fresh taxation of the Respondent’s lower court costs;
      5. That the Honourable Court be pleased to order the auctioneers in the warrants of attachment dated 08.09.2023 herein to tax their costs;
      6. That this Honourable Court do make any such further and/or other orders and issue any other relief it may deem just to grant in the interest of justice.
  2. The Application is supported by the Affidavit of the Appellant’s Advocate, Mr. Lawrence Njuguna, and is premised on the following grounds: -
  3. THAT the appeal arises from the decision of Hon. W. C. Waswa delivered on 26/7/2021 in Nyamira CMCC 151/2018.
  4. THAT being aggrieved by the decision the appellant initiated Nyamira HCCA 58 of 2021 after complying with stay conditions of providing a bank guarantee of Kshs. 206,500.00.
  5. THAT the appeal was allowed on 4/5/2023 and the general damages previously awarded, Kshs. 200,000.00 was considerably reduced to Kshs. 120,000.00.
  6. THAT while we were in the process of payment of the decretal amount, the respondent proceeded to execute through warrants of attachment dated 8th September 2023.
  7. THAT in the said warrants of attachment the costs are taxed at Kshs. 192,382.00 yet the general damages is of Kshs. 120,000.00.
  8. THAT this taxed courts are exaggerated and the same should be taxed afresh.
  9. THAT the applicant will suffer irreparable harm and loss if this application is not certified urgent, heard and determined and an order staying the warrants of attachment are not granted.
  10. THAT this Application has been made without undue and/or unreasonable delay.
  11. THAT the appeal ought to be reinstated and readmitted as it raises triable issues that need to be heard and determined by this honourable court.
  12. THAT this Application ought to be granted in the interests of equity and justice.
  13. The Respondent opposed the Application through his Replying Affidavit sworn on 12th April 2024 wherein he highlights the genesis of the Application and avers that the Application is legally incompetent as it proceeds on unsound reasoning.  He states that the Applicant did not lodge any protest or objection to the taxation in the primary suit as required by the provisions in Regulation 11 of the Advocates (Remuneration) Order, 1962 (ARO).  He states that the Applicant was duly served with the party and party bill of costs but opted not to respond to it thereby leading to the taxation at Kshs. 192,832.  He faults the Applicant of abusing the court’s process by indefinitely stalling the expeditious conclusion of the case that commenced more than 6 years ago.
  14. The Application was canvassed by way of written submissions which I have considered.
  15. The main issue for determination is whether the instant application is merited.
  16. The Application mainly seeks orders for a fresh taxation of the Respondent’s lower court costs and an order for the taxation of the auctioneer’s costs.
  17. On the prayer for the taxation of the auctioneers’ costs, I note that the identity of the said auctioneer was not disclosed as it has not been made a party to the instant application.  I find that the court cannot make orders in respect to such an unidentified party.
  18. Turning to the prayer for fresh taxation of the Respondent’s lower court costs, the Appellant argued that the taxed costs are exaggerated in view of the fact that the lower court award was Kshs. 200,000/= for General Damages which was reduced to Kshs. 120,000/=, on appeal.
  19. The Respondent, on the other hand, took issue with the procedure adopted by the Applicant for re-assessment of the costs.  According to the Respondent, the Applicant should have lodged an objection/reference to the outcome of the taxation as provided under Regulation 11 of the ARO.  Reference was made to numerous decisions on the subject of objection to taxation of costs including the case of Sharma vs. Uhuru Highway Development Ltd [2001] 2EA 530 where it was held that: -

“… (the High Court Judge), not being seized of the taxation itself, and there being no appeal or reference to him as provided for by paragraphs 11 (1) and (2) and 12 of the Advocates (Remuneration) Order from a decision of the Taxing Officer who was dealing with the taxation, and the taxation not being a suit filed in the High Court for the recovery of costs, simply had no jurisdiction at all, to hear as he did, the Respondent’s application to strike out the (application for taxation).  This by itself makes his hearing of, and his ruling of 19th May, 2000, of the Respondent’s application a nullity from the word go…”

  1. It is trite that taxation of costs is a special jurisdiction that is reserved to a taxing officer/master and is governed by the ARO. 
  2. Rule 11 of the ARO stipulates as follows: -

11. Objection to decision on taxation and appeal to Court of Appeal

(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.

(3) Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal. 163. Supreme Court.

  1. Having regard to the above provisions, which are clear on the steps to be taken by a party who is aggrieved by the decision of the Taxing Master, this court is at a loss as to why the Applicant herein opted to invoke this court’s jurisdiction, through an application for a fresh taxation.  Courts have taken the position that any dissatisfaction with the decision of a taxing officer, whether it relates to a point of law taken with regard to taxation or to a grievance about the taxation of any item in the bills of costs is to be addressed by way of a reference to the judge in line with paragraph 11 of the ARO.  {See Macharia & Co. Advocates vs. Maguga [2002] 2EA 428 (CCK)}
  2. I note that the Applicant cited the provisions of the Civil Procedure Rules (CPR) especially Order 45 and 50 thereof as the basis of his application.  This means that the present application is not a reference, but an ordinary application seeking to challenge the outcome of taxation.
  3. In Macharia & Co. Advocates case (supra), the court rendered itself as follows on the place of the ARO and the invocation of the CPR: -

“First, the Advocates Remuneration Order is a complete code and there is no provision for the invocation of the Civil Procedure Rules.  It does not provide for an appeal from any sort of decision by the taxing officer and indeed Order XLII of the Civil Procedure Rules is clear that appeals lie either as of right or with leave from orders made under the Civil Procedure Rules. No mention is made of orders made under the Advocates Remuneration Order.  And it is a basic principle of procedural law that appeals to the High Court lie only where a right of appeal has been conferred be statute.

Secondly, as I understand the practice relating to taxation of bills of costs, any complaint about any decision of the taxing officer whether it relates to a point of law taken with regard to taxation or to a grievance about the taxation of any item in the bill of costs is ventilated by way of a reference to the Judge in accordance with paragraph 11 of the Advocates Remuneration Order. [Emphasis added]”

  1. Guided by the holding in the above-cited case, I agree with the Respondent’s submissions and find that this court cannot be invited to deal with a matter involving taxation of costs except by way of a reference (from the taxation decision) under paragraph 11 of ARO. 
  2. My finding is that since the present application is not a reference, this court lacks the jurisdiction to entertain it.
  3. Consequently, I dismiss the Application dated 28th September 2023 with costs to the Respondent.
  4. Orders accordingly.

Ruling dated, signed and delivered virtually via Microsoft Teams at Nyamira this 30th day of January 2025.