Biegon v Tonui [2025] KEHC 3847 (KLR)

Biegon v Tonui (Reference E032 of 2024) [2025] KEHC 3847 (KLR) (27 March 2025) (Ruling)

Neutral citation: [2025] KEHC 3847 (KLR)

Republic of Kenya

In the High Court at Kericho

Reference E032 of 2024

JK Sergon, J

March 27, 2025

Between

Lily Chepkosgei Biegon

Applicant

and

Beatrice Chepkemoi Tonui

Respondent

Ruling

1. The application coming up for determination is a chambers summons dated 8th August, 2024 seeking the following orders;Ex – parte(i)Spent(ii)SpentInter – partes(iii)Spent(iv)That the entire decision of the Learned Resident Magistrate, L. Kananu dated 9. 7.2024 in the Kericho Chief Magistrates Court Civil Case No. MCC/E291/2022, Lily Chepkosgei Biegon vs Beatrice Chepkemoi Tonui with respect to the Respondent’s Party and Party Bill of Costs dated 22. 3.2024 be set aside and taxed or assessed afresh by this Honourable Court.(v)That the costs of this application be provided.

2. The application is supported by the grounds on the face of it and the supporting affidavit of Lily Chepkosgei Biegon the Applicant in this matter.

3. She avers that was the Plaintiff in the Kericho Chief Magistrates Court Civil Case No. MCC/E291/2022, Lily Chepkosgei Biegon vs Beatrice Chepkemoi Tonui which matter was summarily determined when the said case was dismissed with costs to the respondent herein for want of prosecution.

4. She averses that consequently kshs. 92,394/= costs was on 9. 7.2024 assessed and awarded to the Respondent herein upon assessment of her Party and Party Bill of Costs dated 25. 3.2024.

5. She avers that having been aggrieved with the said Decision by the Learned Resident Magistrate, she instructed her advocates on record to register her Objection to the said Decision as provided for under Rule 11 (1) of the Advocates (Remuneration) Order (2014).

6. She avers that the Learned Resident Magistrate has since neglected, refused and or declined to provide her reasons for her said decision as required of her by Rule 11 (2) of the Advocates (Remuneration) Order (2014) and that as a result she instructed her advocates on record to file this Reference.

7. She avers that the Learned Resident Magistrate failed to correctly apply paragraph 1 (b) of Schedule 7 of the Advocates (Remuneration) Order 2014 which is the correct scale for assessing fees prescribed for the impugned Bill of Costs emanating from matter summarily determined like the subject matter herein.

8. She avers that the Learned Resident Magistrate totally disregarded her submissions and the comparative authorities demonstrating what would amount to a fair and reasonable Costs in view of the circumstances of this particular case.

9. She avers that the Learned Resident Magistrate further erred in law and in principle in concluding in her assessment of the Party and Party Bill of Costs dated 25. 3.2024 that the same was unopposed and drawn to scale while we had in fact filed their submissions raising our objection thereto.

10. She avers that the Learned Resident Magistrate in addition erred in law and in principle in allowing the Respondent’s claim for kshs. 12,744/= as VAT in a Party and Party Bill of Costs and that it is evident that the Costs awarded were grossly exaggerated.

11. She avers that the Learned Resident Magistrate made serious errors in principle in assessing the Respondent’s impugned Party and Party Bill of Costs dated 25. 3.2024 thereby arriving at the wrong decision and that the said assessment was hence irregular and the decision of the Learned Resident Magistrate ought to be set aside and Respondent’s Party and Party Bill of Costs dated 25. 3.2024 taxed or assessed afresh.

12. The parties were directed to file written submissions at the time of writing this ruling the applicant had complied and filed her written submissions. The Applicant contended that whereas the Respondent claims Kshs. 50,000/= as Instruction Fees, Schedule 7 A of the Remuneration Order provides for the scale to be used in assessment of Party and Party Costs in all Proceedings in the Subordinate Court. Paragraph 1(b) thereof, which applies to this matter states as follows:- To sue or defend in a suit in which the suit is determined in a summary manner in any manner whatsoever without going to full trial the fee shall be 75% of the fees chargeable under item 1(b). The applicant contended that this matter never proceeded to full trial as it was dismissed for want of prosecution. The applicant contended that from the pleadings filed in court, that the amount in dispute is Kshs. 80,000/=. Paragraph 1 (c) of the said Schedule also provides that the Remuneration Order further provides that the “Lower Scale” shall be applied in all cases where no defence or other denial of liability has been filed and the “Higher Scale” shall be applied in all other cases. Since a Defence was filed in this matter, the Higher Scale will inevitably apply and as earlier submitted, only 75% of which will be chargeable. The applicant contended that for a suit like this where the Respondent had sought payment of kshs 80,000/= the correct amount that the Respondent should claim is 75% of kshs. 30,000/= Instructions Fees making out to kshs. 22,500/= and not the kshs, 50,000/= sought in item 1 of the subject Party and Party Bill of Costs.

13. The applicant contended that a taxing officer should in assessment of instruction fees take into consideration the nature and importance of the matter, the complexity of the matter and the difficulty or novelty of the question raised, the amount of value of subject matter and time expended by the advocate and cited the court of appeal which set out the factors to be used to assessment of instruction fees in Joreth Ltd vs Kigano and Associates (2002) E.A 92 these factors stated include:- “The importance of the matter, general conduct of the case, the nature of the case, time taken for the dispatch and the impact of the case on the parties.” She therefore urges this Honourable Court to find an award of kshs. 22,500/= as sufficient instruction Fees as provided for under Schedule 7 A Paragraph 1(b) of the Remuneration Order and to find that the claimed sum of Kshs. 50,000/= is excessive and unreasonable.

14. The applicant contended the Respondent’s claims on Attendances, Disbursements and sought that this Court awards kshs. 1,400/= for each item in items 2 to 16 in the subject Party and Party Bill of Costs for court attendances as prescribed by Schedule 7 A Paragraph 6 on fees chargeable for any necessary application to or attendance of Magistrate in court. This makes out to kshs. 21, 000/=. And therefore the Respondent’s claim for kshs. 2,100/= in items 4, 7, 8, 11, 12 15 and 16 in a matter that never went to hearing is disingenuous and are exaggerations.

15. The applicant contended the kshs. 12,744/= VAT that the Respondent has claimed and cited Onguto, J in Pyramid Motors Limited vs Langata Gardens Limited (2015) eKLR who was cited with approval by Githinji, J in Shreeji Enterprises Limited v John Munga Chai [2022] eKLR stated that a taxing Master can only award VAT if the Bill is an Advocate- Client and not a Party and Party Bill of Costs. The Respondent in this matter cannot hence be allowed in principle to claim VAT on a Party and Party Bill of Costs as prayed.

16. The applicant conceded to taxation of items 17 to 21 adding up to kshs. 3,750/=. The applicant finally submitted that the correct total figure ought to be kshs. 47, 250/= having taxed off the excessive amounts as above stated in the Party to Party Bill of Costs.

17. The matter came up for inter partes hearing, the applicant stated that he served the instant application and filed an affidavit of service and therefore the reference should be allowed. There was no response to the application and/or representation on the part of the respondent.

18. I have considered the application and response by parties and I find that the issue (s) for determination are whether to set aside and tax afresh the entire decision of the Learned Resident Magistrate, L. Kananu dated 9. 7.2024 in the Kericho Chief Magistrates Court Civil Case No. MCC/E291/2022, Lily Chepkosgei Biegon vs Beatrice Chepkemoi Tonui with respect to the Respondent’s Party and Party Bill of Costs dated 22. 3.2024.

19. On the issue as to whether to set aside and tax afresh the entire decision of the Learned Resident Magistrate, L. Kananu dated 9. 7.2024 in the Kericho Chief Magistrates Court Civil Case No. MCC/E291/2022, Lily Chepkosgei Biegon vs Beatrice Chepkemoi Tonui with respect to the Respondent’s Party and Party Bill of Costs dated 22. 3.2024. This court notes the concerns raised by the applicant in this reference to wit the fact that Learned Resident Magistrate totally disregarded her submissions and the comparative authorities demonstrating what would amount to fair and reasonable costs in view of the circumstances of this particular case and that the Learned Resident Magistrate allowed the party to party bill of costs dated 25th March, 2024 as drawn without giving reasons and has since neglected, refused and or declined to provide her reasons for her said decision as required of her by Rule 11 (2) of the Advocates (Remuneration) Order (2014). However, this court notes that the failure of the taxing officer to provide reasons should not bar the applicant from filing a competent reference. The Court of Appeal in Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR held as follows; “Although there was no strict compliance with Rule 11 (2) of the Order, we are nevertheless satisfied that there was substantial compliance. The adequacy or otherwise of the reasons in the ruling is another matter. Indeed, we are of the view, that if a taxing officer totally fails to record any reasons and to forward them to the objector, as required then that would be a good ground for a reference and the absence of such reasons would not in itself preclude the objector from filing a competent reference.” This court finds that the reference application dated 8th August, 2024 is statutory time barred, incompetent, and offends the Provisions of Rule 11(2) of the Advocates Remuneration Order as it is filed more than 14 days after the Taxing Officer's decision being objected to.

20. The procedure for taxation is well laid out in paragraph 11 of the Advocates Remuneration Order. The Applicants herein have not advanced sufficient reasons for the delay in bringing this reference. In any event, they had the opportunity to seek leave of court to enlarge the time for filing of the application. They did not utilize that opportunity. In Twiga Motor Limited v Hon. Dalmas Otieno Onyango [2015] eKLR, the Court stated that: “The limits in Rule II of the Advocates Remuneration Order have been put there for a reason. Failure to adhere to the said time lines would mean that the application would be rendered incompetent in the first instance.”

21. For reasons that the reference herein was filed out of time and without leave of court in accordance with the provisions of paragraph 11 (4) of the Advocates Remuneration Order, I find and hold that it is incompetent and amenable for striking out. It is hereby struck out.

DELIVERED, SIGNED AND DATED AT KERICHO THIS 27TH DAYOF MARCH, 2025. …………………………….J.K. SERGONJUDGEIn the Presence of:-C/Assistant - RutohNo Appearance for the Parties