Dorcas Florence Kombo v Royal Media Services [2015] KEHC 1462 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL CASE NO. 85  OF 2011

DORCAS FLORENCE KOMBO.................................PLAINTIFF

VERSUS

ROYAL MEDIA SERVICES ...................................DEFENDANT

RULING

Royal Media Services, the Defendant herein took  out the summons dated 26/08/2015 and sought for the following orders:

THAT pending further orders of this court, there be stay of execution of the taxed costs in this matter.

THAT there be a stay of execution of the taxed costs in this mater pending the hearing of this application.

THAT this honourable Court be pleased to set aside the taxing officer’s ruling delivered on 29th July, 2015 as it relates to the reasoning and determination of items 1, 22, 27, 55, 63, 64 and 65 of the Plaintiff’s/respondent’s bill of costs dated 13th February, 2015.

THAT this Honourable Court be pleased to adjust the figures, re-assess the fees due and find that the sum due to the Plaintiff/respondent in the taxation cause is as presented in the Defendant/applicant’s submissions filed on 29th May, 2015.

THAT the costs of this application/reference be provided for:

The summons is supported by the affidavit of Karanja Munyori sworn on the same date.  Dorcas Florence Kombo, the Plaintiff herein filed grounds of opposition to resist the summons.

I have considered the grounds set out on the face of the summons and the facts deponed in the affidavit filed in support of the summons plus the grounds of opposition.  I have also taken into account the oral submissions of learned counsels.  The Defendant/applicant avers that the taxing officer failed to give weight to the relevant factors on record and the well settled principles of law in taking into account the quantum pertaining to items no. 1 of the Plaintiff’s bill of costs dated 13. 02. 2015.

It is also argued by the Defendant that the taxing officer failed to give sufficient reasons or grounds to justify the quantum pertaining items 1, 22, 27, 55, 63, 64 and 65 of the Plaintiff’s/respondent’s bill of costs dated 13. 2.2015.

The Defendant further accused the taxing officer of misdirecting herself on the discretion and awarded a fee that is manifestly excessive as to justify the interference by this court.

When served, the Plaintiff filed grounds of opposition arguing that the Defendant has not disclosed any meritorious ground in support of the motion to disturb the taxing officer’s decision on taxation.  The Plaintiff further stated that the motion was filed for the sole purpose of  denying the Plaintiff access to taxed costs plus the principal award.

The background of this dispute can be gleaned from the material placed before this court.  The Plaintiff sued the Defendant claiming general damages and an unconditional apology for defamation vide the plaint dated 14th March 2011.  In the end, the Plaintiff was awarded general damages in the sum of ksh.5,500,000/= plus costs and interest.  The Plaintiff filed a bill of costs which bill was eventually taxed at ksh.274,112/=.  The Defendant being dissatisfied with the decision of Hon. R. N. Makungu, learned taxing officer, preferred this reference.  It is the submission of Mr. Karanja, learned advocate for the Defendant, that the taxing officer erred in principle when making the award on taxation.  He was of the view that since no monetary value was attached to the suit, the instruction fees was excessive.  Mr. Saluri learned advocate for the Plaintiff was of the view that the learned taxing officer considered the relevant factors in arriving at her decision hence she did not err in principle.

The Defendant identified items no. 1, 22, 27, 55, 63, 64, and 65 whose awards should be set aside.  It is argued that the taxing officer failed to give sufficient reasons to justify her decision on each of those items.  It is also argued that the awards were excessive as to justify the intervention of this court.

I have critically examined the ruling of the learned taxing officer delivered on 29. 7.2015.  The taxing officer correctly stated that  Schedule VI of the Advocates (Remuneration) Order was applicable to this case.

On item no. 1 the Plaintiff had asked for kssh.210,000/= based on the principal sum of kshs.5,500,000/-.  The  learned taxing officer made an award of kshs.200,000.

The taxing officer appreciated the fact that under the schedule, the actual minimum figures came to ksh.159,500/=, she however found kshs.200,000/= as  reasonable.  In my humble view, I do not think the learned taxing officer erred nor breached any principle.  Her decision on item 1 cannot therefore be faulted.  I also find that the award in item no. 22 was according to the scale hence the same should not be interfered with.

In item no. 27, the Plaintiff had asked for an amount equivalent to a full day but the learned taxing officer slashed the amount to ksh.2,100/= because the court attendance was not a hearing per se.  Again, the learned taxing officer cannot be faulted.

In respect of item no. 55, the learned taxing officer awarded kshs.5,040/=.  Though she did not attach any reason for this award, I have looked at the relevant provisions and   I am satisfied that the item was taxed to scale hence the decision cannot be interfered with.  The learned taxing officer awarded kssh.3000 each in items nos. 63, 64 and 65.

The taxing officer stated that the award is in line with part 7(d) of Schedule VI of 2014 Advocates (remuneration) Order.   I am satisfied she applied the correct principles hence the awards are not excessive as alleged.

In the end I find no merit in the reference.  Since the reference is not successful, I do not think the prayer for stay can be granted.  Consequently the summons dated 26. 8.2015 is ordered dismissed with costs to the Plaintiff.

Dated and delivered in open court this 23rd day of October, 2015.

J. K. SERGON

JUDGE

In the presence of:

………………………………………. for the Plaintiff

……………………………………….for the Defendant