Aki Social Kenya Limited v Nairobi Business Park [2021] KEBPRT 474 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO. 939 OF 2018 (NAIROBI)

AKI SOCIAL KENYA LIMITED.................................TENANT/APPLICANT

VERSUS

NAIROBI BUSINESS PARK................................LANDLORD/RESPONDENT

(Being a Ruling on Taxation of the Bill of Costs dated 26th November, 2019)

RULING ON TAXATION

1. By a Ruling of the Tribunal delivered on 20th September, 2019, the Tenant/Applicant’s application dated 22nd November, 2018 was found to be incompetent as the tenancy is not controlled and the same was struck out. It was ordered that the Tenant/Applicant shall pay the Landlord/Respondent costs of the proceedings and it was further ordered that the said costs shall be taxed by the Tribunal.

2. For determination before this Tribunal is the Party and Party Bill of Costs dated 26th November, 2019, drawn to the sum of Kshs. 316,700. 00 by the Landlord/Respondent’s represented by the firm of M/s Kaplan and Stratton Advocates.

3. The Bill of Costs proceeded for hearing unopposed and will be taxed in accordance with Schedule 8 the Advocates Remuneration Order, 2014 which provides for the costs of proceedings before this Tribunal.

Item No. 2 Instruction Fees

4. Item No. 2 is the Instructions Fees to act for the Landlord/Respondent in relation to the Tenant’s/Applicant’s complaint alleging that the Landlord/Respondent was in the process of instructing Auctioneers to levy distress for rent against them to recover rent arears in the sum of Kshs. 9,335,387. 00. The Landlord/Respondent seeks a sum of Kshs. 300,000. 00 as instruction fees.

5. In awarding instruction fees, the Tribunal is guided by Paragraph 1 of the Schedule 8 the Advocates Remuneration Order, 2014which provides that: -

1.   When an order has been made for payment of costs by either party and an advocate has been employed, those costs, in addition to the Tribunal fees, may be allowed to the successful party under paragraphs 6 and 7.

6. Paragraph 5 of the Schedule 8 the Advocates Remuneration Order, 2014 provides that: -

5.  The value of the subject-matter shall be determined as follows-

a)  in a case where the amount of the annual rent is disputed, the difference between the amount proposed by the landlord and the amount offered by the tenant;

7. The Tribunal is also guided by various case law, whereby in Jared Ltd vs Kigano & Associates Civil Appeal No. 66/1999 (2002) 1 EA 92 the Court of Appeal set out the following principles that a taxing officer ought to consider:

a. The nature and importance of the cause or matter;

b. The amount or value of the subject matter;

c. The interest of the parties;

d. The general conduct of the parties;

e.The complexity of the issues raised and novel points of law;

f. The time, research and skill expended in the brief;

g. The volume of documents involved.

8. Further, in Premchand Raichand Ltd and another vs Quary Services of East African Ltd and Another (1972) EA 162 the Court held that:

a. Costs must not be allowed to rise to such a level as to confine access to justice to only the wealthy.

b. A successful litigant ought to be successfully reimbursed for the costs incurred.

c. The general level of remuneration of the advocates must be such as to attract recruits to the profession.

d. So far as practical, there should be consistency in the awards made.

9. In determining instruction fees, the Tribunal should consider the nature and importance of the subject matter, the responsibility placed on the Counsel and the general conduct of proceedings, time spent, research done and skills deployed by Counsel. Instruction fees must be related to the value of the work done by an Advocate. I have carefully considered the factual and legal issues with a view to gauge the complexity of issues, importance of the matter and the amount of work involved. Bearing in mind all the aforesaid factors and in exercise of the discretion vested in me, I am convinced the instruction fees sought is excessive in the circumstances of this case. I am aware that the applicable fee is provided for in Schedule 8 of the Advocates Remuneration Order, 2014 and therefore, taking into account the time taken in this mater, scope of work done and the nature of the dispute herein Kshs.180,000. 00 be and is hereby awarded as instruction fees and the balance thereof taxed off.

10. With the exception of the instruction fees, I find that the other items sought are reasonable and drawn to scale. I therefore allow items 1, 3-23 of the Bill of Costs and proceed to tax them as drawn.

11. Based on the foregoing, the Landlord/Respondent’s the Bill of Costs dated 26th November, 2019 at Kshs. 316,700/= (Kenya Shillings Three Hundred and Sixteen thousand seven hundred only).A total sum of Kshs. 196,700. 00 is allowed and the balance is taxed off.

ANDREW MUMA

VICE-CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND SENT ELECTRONICALLY BY CONSENT THIS 19TH DAY OF MARCH, 2021

ANDREW MUMA

VICE-CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL