Joash Osiemo Mogaka v Attorney General, The Commissioner of Police, Cpl David Ruto, Pc Lucas Ngige, Pc Edward Mwinyi & Director of Public Prosecution [2017] KEHC 2973 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CONSTITUTIONAL PETITION NO. 29 OF 2011

IN THE MATTER OF ARTICLE 29 (C), (D), 50(A), (C) OF THE CONSTITUTION

BETWEEN

JOASH OSIEMO MOGAKA….………....……PETITIONER/APPLICANT

VERSUS

THE ATTORNEY GENERAL

THE COMMISSIONER OF POLICE

CPL DAVID RUTO

PC LUCAS NGIGE

PC EDWARD MWINYI

DIRECTOR OF PUBLIC PROSECUTION.................……. RESPONDENTS

R U L I N G

1. This ruling is in respect to the chamber summons application dated 10th April, 2017 in which the applicant seeks orders that the decision of the Taxing Master made on 28th February, 2017 on the Taxation of the applicant’s Bill of Costs dated 7th April, 2016, be set aside. The applicant also seeks the re-taxation of items 1,2,3,7,11,12,13,14,16,22,23,24,25,31,32,34,35 and 36 of the applicant’s said bill of costs. The main ground upon which the application is based appears to be that the Taxing Master erred in failing to take into account all the relevant facts in considering the instruction fees thereby arriving at an erroneous assessment. The applicant also took issue with the finding of the Taxing Master on the number of folios and faulted her for equating a page to a folio.

2. The application is supported by the affidavit of the applicant’s advocate, one Kennedy Bosire Gichana who deposes that upon filing the bill of costs, the same was taxed at Kshs. 155,148/= and being aggrieved with the outcome of the taxation, an objection to the taxation was filed but that the taxing officer did not record any reasons for her decision as required under Rule 11 (2) of the Advocates (Remuneration) Order (hereinafter “the ARO’).

3. The Application was not opposed by the respondents who did not file any response to it despite proper service and when the matter came up for hearing, Mr. Nyambati, learned counsel for the applicant beseeched  the court to allow the application as prayed.

4. I have carefully perused the court record and the instant application before the court. Rule 11 (1) and (2) of the ARO stipulates as follows: -

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.

5. The Procedure to be adopted by an aggrieved party to taxation is specific that the said party must write to the Taxing Master, within 14 days of the ruling on taxation, a Notice of Objection specifying the items in the Bill of Taxation in respect of which he is aggrieved and requesting the Taxing master to give reasons for his decision. I find that the applicant adhered to the above procedure in objecting to the taxation as he filed his objection within the stipulated period. I similarly find that the taxing master complied with the rules in responding to the objection and directing the applicant to note that the reasons for her decision were contained within the ruling itself. However even assuming that the taxing officer can be deemed not to have given reasons for her decision as is envisaged by the rules, the Courts’ power under paragraph 11 of the Advocates (Remuneration Order) is meant to be exercised to meet the ends of justice so that the objector is not barred from filing a reference in such circumstances. See the Court of Appeal’s decision in Kipkorir, Titoo  & Kiara Advocates v. Deposit Protection Fund Board [2005] 1KLR 528 where the implication of a Taxing Officer’s failure to record and/or furnish reason for his/ her decision was discussed as follows:-

“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.”

6. The Applicant’s main argument, as can be discerned on the body of the application, is that the Taxing Officer did not take into account all the relevant facts regarding the instructions fees and other items listed on the bill of costs thereby arriving at an erroneous assessment. The relevant facts in this case will be the issues of law and fact that were alluded to and canvassed by the parties during the taxation. I have perused the taxing officer’s ruling and the parties’ submissions on item 1 which was the instructions fees and I note that she assessed the same at Kshs. 77,000/= while basing her assessment on the law, (ARO), and the award of Kshs. 1,000,000/= that was made to the applicant in the judgment that gave rise to the taxation. I however note that the respondent had submitted, before the Taxing Officer, that through the Kenya Gazette Supplement No. 42 dated 11th April, 2014 Legal Notice No. 35, the Chief Justice directed that advocates handling constitutional matters ought to charge not less than Kshs. 100,000/= if the matter is opposed. I have perused the said Gazette Supplement and I note that it stipulates as follows at Schedule 6 (j) (i) and (ii):-

6 (j) Constitutional petitions and prerogative orders

To present or oppose an application for a Constitutional and Prerogative Orders such fee as the taxing master in the exercise of his discretion and taking into consideration the nature and importance of the petition or application, the complexity of the matter and the difficulty or novelty of the question raised, the subject matter, the time expended by the advocate-

(i) Where the matter is not complex or opposed such sum as may be reasonable but not less than 45,000

(ii) Where the matter is opposed and found to satisfy the criteria set above, such sum as may be reasonable but not less than 100,000

7. In the instant case, the applicant appears to me to be seeking that tI interfere with, order for a re-taxation or reverse the Taxing Officer’s finding in respect to the item of instructions fees and other items that he has listed. It is trite law however, that the Appellate tribunal, which the Judge in Chambers in respect of taxation Ruling is, will not generally interfere with an exercise of discretion of the Taxing officer unless the latter’s decision: -

i. Was in error of principle or

ii. The sum allowed is so high or excessive or so low that it clearly is unreasonable and will have been contrary to the existing principle.  See generally First American Bank of Kenya Vs Shah and others [2002] E.A.L.R 64, Steel Construction Petroleum Engineering E A Ltd Vs Uganda Sugar Factory [1970] E A 141, Kamunyori & Company advocates Vs Mully Children Trust and another (Ruling No 1) High Court Misc. App 936 of 2010 [2012] e KLR.

8. As was stated in the case of Arthur Vs Nyeri Electricity Undertaking,(1961) EA 497” –

“where there has been an error in principle the court will interfere; but questions solely of quantum are regarded as matters with which the Taxing Officers are particularly fitted to deal and the court will interfere only exceptional cases.”

9. I have carefully perused the record of the case in which the costs that are the subject of this proceedings were awarded and I note that the same was not opposed in which case the applicable scale under the above Gazette Supplement will be Schedule 6 (j) (i) which provides for the sum of not less than Kshs. 45,000. I also note, from the ruling on taxation, that even though the Taxing Officer took note of the provisions of the Gazette Supplement mentioned hereinabove, she did not consider the said provisions in assessing the instruction fees that was due to the applicant and instead relied on the scale provided for in the ARO. It is however my considered view that this was not an error of principle on the part of the taxing officer which would warrant the intervention of this court taking into account the fact that the amount awarded under the item on instructions fees was way above the minimum amount provided for in the Gazette Supplement.

10. In my humble view the Applicant did not establish that the Taxing Officer erred in principle, to warrant interference of the Judge in respect to the figure of Ksh.77,000 itself being merely quantum, rather than a result of wrong exercise of discretion. The court notes that the figure arose out of the taxing master’s reliance on the ARO and the damages awarded to the applicant.

11. In respect to the other items in the taxation raised by the applicant, I  note that some of the items were not exactly assessed in line with the scale articulated in the Advocates (Remuneration) (Amended) of 2014 Order which is specific on the amount to be charged thereby leaving no room for the taxing officer to exercise his/her discretion, in which case the taxing master can be said to have erred in principle thereby warranting interference of the Judge in respect to the figures awarded. The affected items are; 2, 3, 7, 22, 23, 24, 25, 31 and 32 only.

12. Taking all the facts, reasons and circumstances discussed above, I find merit in this application which I hereby allow , albeit in part,  by setting aside the award by the taxing master but on a very narrow review as follows;

a) The taxing master shall not re-open taxation on any item not raised by the applicant in this application. In that regard, the only items remitted for reconsideration are;

1)  Items 2,3, 7, 23, 24, 25, 31 and 32 only.

2)  For the avoidance of doubt, the re-taxation shall be done by Hon. V. Karanja, Deputy Registrar who last dealt with the matter.

13. I make no order on costs.

14. It is so ordered.

Dated, signed and delivered in open court this 9th day of October, 2017

HON. W. OKWANY

JUDGE

In the presence of:

Mr. Bosire Gichana for the ex parte applicant

N/A for the Respondents

Omwoyo: court clerk