Charles Kiplangat t/a Kiplangat & Associates Advocates v Kenya Reinsurance Corporation Ltd [2022] KEBPRT 251 (KLR)

Charles Kiplangat t/a Kiplangat & Associates Advocates v Kenya Reinsurance Corporation Ltd (Tribunal Case 78 of 2019) [2022] KEBPRT 251 (KLR) (13 May 2022) (Ruling)

Neutral citation: [2022] KEBPRT 251 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case 78 of 2019

Gakuhi Chege, Vice Chair

May 13, 2022

Between

Charles Kiplangat t/a Kiplangat & Associate Advocates

Applicant

and

Kenya Reinsurance Corporation Ltd

Respondent

Ruling

1. Before me is a party and party bill of costs dated September 15, 2021 in which the landlord claims a sum of kshs 216,360/64 against the tenant pursuant to the tribunal’s order of August 24, 2021 in which costs of both references were awarded to it.

2. The bill of costs being opposed was directed to be canvassed through written submissions and both parties have complied. I intend to address the opposed items in the same manner presented by the tenant’s counsel.

3. Item 1 is opposed on the basis that the tenant was seeking non-pecuniary reliefs in both references and it is submitted that only a sum of kshs 23,520/- is payable under the said item pursuant to rule 7 (2)(b) of the Advocates Renumeration (amended) order.

4. The matter having been filed in the year 2019, the applicable Renumeration order is the Advocates (Renumeration) (amended) order, 2014, schedule 8 which makes provision for costs of proceedings in tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, cap 301, Laws of Kenya.

5. In Nairobi BPRT NO 78 of 2019, the tenant was challenging the landlord’s act of levying distress in recovery of alleged arrears of kshs 4,387,532/65 in terms of the proclamation of attachment issued on January 16, 2019 by Galaxy Auctioneers. An order of injunction was given on January 29, 2019 against the landlord restraining the said proclamation pending hearing and determination of the reference inter-partes.

6. In response to the tenant’s submissions on the amount of instructions fees payable, the landlord’s counsel states that the subject matter was not disclosed and as per schedule 8 of the Advocates Renumeration order, the fee chargeable for instruction fees is kshs 23,520/- as claimed. In the circumstances and in view of the said concession, I shall tax off kshs 102,830/- from item 1 of the bill of costs.

7. The instructions fees in the second case should also be taxed at kshs 23,520/-.

8. The two matters were consolidated on March 29, 2021 and I shall therefore examine the two separate bills of costs individually in regard to services rendered before the consolidation and thereafter all services rendered shall be charged together as one.

9. Items 2,3,5,6,16,28,38,39,43,47,48,52,82,86,87,88, 90,92,93,96 and 100 in the bill of costs filed in BPRT No 78 of 2019 relate to ‘perusals’ which is not provided for and are therefore taxed off.

10. Items 7, 22,30,34, and 62 relate to drawing documents which are not provided for under the relevant schedule. They are therefore taxed off.

11. Items 4,27,37,49,58,64,66,70,74, 76 & 84 relate to service of ‘documents which are not provided for in the schedule as they are not pleadings. The same are taxed off.

12. Items no 15, 40, 44, 67, 94 and 95 were necessary attendances on the Tribunal other than at the hearing which are supposed to attract kshs 1400/- each as per schedule 8 paragraph 8(a) thereof. I therefore tax off kshs 700/- from each item.

13. Items 32 and 36 relate to attendance on the same date for filing and I tax off item 36.

14. Items 61, 73 and 81 relate to court attendance for filings but I take judicial notice that during the said period, all documents were being uploaded on the e-filing portal and the said items are therefore taxed off.

15. Items 29, 42, 89, 97 relate to attendances for hearing. I note that the case did not take off and I shall exercise my discretion to grant kshs 2100/- on each attendance and tax off kshs 1900/- from each item.

16. Items 26, 45,51, 55, 57, 65, 68, 75, 83 and 98 relate to writing letters which is not provided for and I proceed to tax off the said items.

17. Items 69,77, 85 relate to making copies of letters which is not provided for. The same are taxed off.

18. In regard to virtual court attendances, I disagree with the tenant’s counsel that the amounts should be minimal on the basis that there was no undue expenses incurred by the landlord. Virtual court attendances are payable on the same scale as physical attendances as the amount of time and skills spent is similar.

19. It is not correct for the tenant’s counsel to argue that no costs were awarded to the landlord upon withdrawal of the reference as consolidated. This is because an order of costs was made on August 24, 2021.

20. In regard to the party and party bill of costs in Nairobi BPRT No 311 of 2019, I wish to follow the same reasoning above in regard to the various items as follows:-i.Items no 2,3, 28, 30,31, 32,33 & 35 on perusal are taxed off.ii.Items no 5 & 18 on drawing documents not provided for are taxed off.iii.Items no 4 & 9 on court attendances for mention should attract Kshs.1400/-. I tax off kshs 700/- from each.iv.Items 11, 13 and 27 are taxed off as they relate to service of documents which are not provided for.v.Items 10, 12,20,23,29 and 34 are taxed off as they relate to writing letters which is not provided for.vi.Item 14 is taxed off as it relates to making copy of letter which is not provided for.vii.Item 17 is taxed off as documents were being filed through the e-filing portal by 2021. viii.Item 24 is taxed off as the further supplementary affidavit dated April 16, 2021 is not on record.

21. In conclusion therefore, the amount taxed off in Nairobi BPRT NO 78 of 2019 is kshs 138,170/- to leave the balance at kshs 78,190/64 while the amount taxed off in Nairobi BPRT NO 311 of 2019 is kshs 14,920/- to leave the bill at kshs 31,090/-. The combined total for both bills is kshs 109,280/64 and a certificate of costs will therefore issue in favour of the landlord for the said amount.It is so ordered.

RULING DATED, SIGNED AND VIRTUALLY DELIVERED THIS 13TH DAY OF MAY 2022. HON GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Moses Kurgat for the tenantCarrey Francis for the landlord