Kerio Valley Development Authority v Nathan M. Pala t/a Muhatia Pala Auctioneers & 2 others [2023] KEHC 24850 (KLR)

Kerio Valley Development Authority v Nathan M. Pala t/a Muhatia Pala Auctioneers & 2 others (Miscellaneous Civil Application 348 of 2015) [2023] KEHC 24850 (KLR) (3 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24850 (KLR)

Republic of Kenya

In the High Court at Eldoret

Miscellaneous Civil Application 348 of 2015

JRA Wananda, J

November 3, 2023

Between

Kerio Valley Development Authority

Applicant

and

Nathan M. Pala t/a Muhatia Pala Auctioneers

1st Respondent

NIC Bank Ltd

2nd Respondent

Uday Patel & Company

3rd Respondent

Ruling

1. The Application before Court is the Notice of Motion dated and filed on 26/10/2022. The same is between the Applicant and the 3rd Respondent and seeks the following orders:i.That this Honourable Court be pleased to vary or set aside the decision of the Taxing Officer contained in her typed Ruling delivered on 11th February 2022. ii.That the costs of this Application/Reference be provided for.

2. The Application is filed through Messrs Manani, Lilan, Mwetich & Co. Advocates and is stated to be brought under Paragraph 11(1)-(4) of the Advocates (Regulations) Remuneration Order and Sections 1A, 1B and 3A of the Civil Procedure Act. The grounds of the Application are as set out on the face thereon and the same is supported by the Affidavit sworn by one Gertrude Mabele.

3. In his Affidavit, the deponent who described herself as the Manager-Legal Services of the Applicant, deponed that the Applicant filed the Miscellaneous Application herein dated 27/07/2017 seeking for the transfer of the suit to the High Court from the Chief Magistrates Court, on 13/07/2020 the Applicant withdrew the Application and the Court awarded costs to the 3rd Respondent, pursuant thereto the 3rd Respondent filed a Party and Party Bill of Costs dated 10/12/2020, the Bill was prosecuted by way of written Submissions, the Taxing Officer delivered her Ruling in which the instruction fees for defending an Application was assessed at Kshs 120,000/-, the Taxing Master assessed the bill at Kshs 179,325/-, she erred in principle by failing to apply the correct principles and factors after wrongly basing the instruction fees under Schedule 6(A)(1)(j)(ii) of the Advocates Remuneration Order 2014 providing for a minimum of Kshs 100,000/-, the costs awarded are so high yet they pertain to a Miscellaneous Application which was withdrawn and never proceeded to a full hearing, the same was an Application and not a suit, the award offends the rules, the Advocate for the 3rd Respondent did not do work which justified the award, Schedule VI makes it clear that where the suit is determined in a summary manner whatsoever without going to full trial the fee shall be 75% of the fees chargeable , this was not considered by the Taxing Officer who erred in principle and exercised her discretion wrongly.

Response to the Application 4. The 3rd Respondent opposed the Application vide the Grounds of Opposition filed on 12/01/2023 through Messrs Wambua Kigamwa & Co. Advocates. The 3rd Respondent argued that a Miscellaneous Cause is a suit and the procedure prescribed for suits also governs the Miscellaneous Cause by dint of Section 89 of the Civil Procedure Act, a Miscellaneous Cause being similar to a suit, the process of taxation to be adopted is similar to a suit hence the award of Kshs 120,000/- as instruction fees was based on the proper scale, the matter was commenced by a Notice of Motion which is a recognized mode of originating proceedings, directions confirming the matter to proceed for hearing and disposal by written Submissions were given on 14/11/2018 hence getting up fees became due, the matter was not determined in a summary manner but by way of withdrawal hence it cannot be subject of the 75% provision in Section 1(b) of Schedule 6A of the Advocates (Remuneration) Amendment Order, 2014.

Hearing of the Application 5. Pursuant to the directions given, the Application was canvassed by way of written Submissions. The Applicant filed its Submissions on 5/04/2023 while the 3rd Respondent filed on 5/06/2023.

Appellant’s Submissions 6. Counsel for the Applicant cited the Advocates (Remuneration)(Amendment) Order, 2014 (hereinafter referred to as “the Remuneration Order 2014”) in respect to fees applicable to a Notice of Motion as provided under Schedule 6(c)(viii) and submitted that where the Application is opposed, the fee is such sum as may be reasonable but not less than Kshs 5,000/-, under Schedule 6(2) of the Remuneration Order 2014 getting up fees” cannot be claimed or awarded where the matter did not proceed for trial, further, Schedule 6(2) only binds parties who are engaged in a substantive suit where there has been a denial of liability or where parties have identified issues to be determined by the Court, that was not the position in this case as there was no substantive suit filed in Court, what was before the Court was a simple Application brought as a Miscellaneous Application.

7. Counsel cited the case of Republic vs Ministry of Agriculture & 20 Others ex parte Muchiri W’Njuguna [2006] eKLR as regards the powers of the Court to interfere with the assessment done by a Taxation Officer. On whether a Notice of Motion can initiate a suit, Counsel cited the case of Rajab Kosgei Magut v Nuru Jepleting Choge [2020]. For a case where a Judge reduced the fee awarded on account of instruction fees to defend an Application, he cited the case of Mwakio, Kirwa & Co. Advocates vs County Public Service Board Bome & Joshua Terer (Miscellaneous Cause 1 of 2020 [KEELRC 834 (KLR). He added that in this instant case, the 3rd Respondent only filed a Replying Affidavit, the nature of the Application cannot be said to be one that called for Counsel to peruse, study or research on vast issues of law as a matter seeking for transfer of a case from one Court’s jurisdiction to the other is purely pegged on the issues as to jurisdiction, such a case cannot amount to be referred to as complicated, further, the matter never proceeded to hearing as the Applicant voluntarily withdrew the Motion

3rd Respondent’s Submissions 8. On his part, Counsel for the 3rd Respondent submitted that a Miscellaneous Cause is akin to a suit and the procedure prescribed for suits also governs the Miscellaneous Cause by dint of Section 89 the Civil Procedure Act, Remuneration Order 2014 makes reference to “proceedings” as opposed to substantive suits, Schedule 6 which covers cost of proceedings in the High Court, recognizes that proceedings may be instituted by way of Notice of Motion. He cited in particular, Schedule 6(1)(a) which expressly mentions Notice of Motion. For an example of a case where instruction for a suit was awarded in proceedings commenced by Notice of Motion, Counsel cited the case of Geoffrey Karanu Rwenji v Rosemary Wambui Makokha (suing as the widow and personal representative of the Estate of James Aggrey Makokha - Deceased & 2 Others [2020]eKLR. He added that the assertion by the Applicant that the applicable provision should have been Schedule 6(c)(viii) is misplaced as the said provision relates to appeals.

9. On “getting up” fees, Counsel submitted that the same was earned once the matter was laid down for hearing and cited the case of Nguruman Limited v Kenya Civil Aviation Authority & 3 Others [2014] eKLR. On whether the Cause was determined in a summary manner, he submitted that since the Applicant withdrew the matter, no determination was made and as such, it cannot be the subject of the 75% provision contemplated under Schedule 6(1)(b) of the Remuneration Order 2014.

Analysis and Determination 10. Upon examination of the record and the pleadings filed, including the Affidavits and Submissions, I find that the issues that arise for determination to be as follows:i.Whether the Taxing Officer erred in her determination of instruction fees.ii.Whether the award of “getting up” fees was justified.iii.Whether the instruction fees should have been awarded at 75% for the reason that the matter was withdrawn.

11. I now proceed to analyze and answer the said Issues

i. Whether the Taxing Officer erred in her determination of instruction fees 12. The principles applicable when the High Court is invited to interfere with a Taxing Master’s decision were well set out by G.V. Odunga J (as he then was) in the case of Republic vs Competition Authority Ex Parte Ukwala Supermarket Ltd & Anor [2017] eKLR where he stated as follows:“25. The circumstances under which a Judge of the High Court interferes with the taxing officer’s exercise of discretion are now well known. These principles are, (1) that the Court cannot interfere with the taxing officer’s decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was manifestly excessive as to justify an inference that it was based on an error of principle; (2) it would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors and, according to the Order itself, some of the relevant factors to be taken into account include the nature and the importance of the cause or matter, the amount or value of the subject matter involved, the interest of the parties, the general conduct of the proceedings and any direction by the trial judge; (3) if the Court considers that the decision of the Taxing Officer discloses errors of principle, the normal practise is to remit it back to the taxing officer for reassessment unless the Judge is satisfied that the error cannot materially have affected the assessment and the Court is not entitled to upset a taxation because in its opinion, the amount awarded was high; (4) it is within the discretion of the Taxing Officer to increase or reduce the instruction fees and the amount of the increase or reduction is discretionary; (5) the Taxing Officer must set out the basic fee before venturing to consider whether to increase or reduce it; (6) the full instruction fees to defend a suit are earned the moment a defence has been filed and the subsequent progress of the matter is irrelevant to that item of fees; (7) the mere fact that the defendant does research before filing a defence and then puts a defence informed of such research is not necessarily indicative of the complexity of the matter as it may well be indicative of the advocate’s unfamiliarity with basic principles of law and such unfamiliarity should not be turned into an advantage against the adversary. These principles were stated in the case of First American Bank of Kenya vs. Shah and Others [2002] 1 EA 64. ”

13. On the same subject, Mativo J (as he then was) in KANU National Elections Board & 2 others vs. Salah Yakub Farah [2018] eKLR held as follows:“19. It is trite that the court will not interfere with the exercise of the taxing master’s discretion unless it appears that such has not been exercised judicially or it was exercised improperly or wrongly, for example, by disregarding factors which she should have considered, or considering matters which were improper for her to have considered, or she had failed to bring her mind to bear on the question in issue, or she had acted on a wrong principle. The court will however interfere where it is of the opinion that the taxing master was clearly wrong or in circumstances where it is in the same position as, or a better position than the taxing master to determine the very point in issue.”

14. Counsel for the 3rd Respondent argued that under Section 89 of the Civil Procedure Act, a Miscellaneous Cause is treated as a “suit” and the procedure prescribed for suits therefore also governs Miscellaneous Causes. The Section provides as follows:“89. Miscellaneous proceedingsThe procedure provided in this Act in regard to suits shall be followed as far as it may be applicable in all proceedings in any Court of civil jurisdiction.”

15. Counsel also submitted that Schedule 6(1)(a) of the Remuneration Order 2014 makes reference to “proceedings” as opposed to “suits” and that the same expressly mentions “Notice of Motion”. The said provision is premised as follows:“To sue in any proceedings (whether commenced by plaint, petition, originating summons or notice of motion) in which no defense or other denial of liability is filed, where the value of the subject matter can be determined from the pleading, judgment or settlement between the parties and (amounts provided) ...

16. While I fully agree with the general statement above, I believe that the interpretation on whether a “Notice of Motion” can commence a “suit” and the effect thereof should not be construed in isolation, the interpretation and effect thereof should depend on the context in which the interpretation is being made. While therefore a Notice of Motion may be deemed to be a “suit” or “proceedings” and by reason thereof, have one result in one instant, it may well lead to a totally different result in another context. The definition of “proceedings” in Schedule 6(1) above to include “notice of motion” should not therefore, in my view, necessarily have the effect of justifying employment of uniform principles of taxation of costs to any and all proceedings commenced by way of Notice of Motion. The context is key.

17. For instance, in the case of Joseph Kibowen Chemor Vs William C Kasera (2013) eKLR the Court, in declining to entertain an Application for injunction sought by way of a Notion of Motion not anchored in a Plaint, held as follows;“The word “suit” has several meanings. Black’s Law Dictionary defines “suit” as any proceedings by a party or parties against another in a court of law. Suit of a civil nature is defined to be a civil action.A civil action is an action brought to enforce, redress, or protect a private or civil right.Rules means rules and forms made by the Rules Committee to regulate the procedure of courts.Pleadings include a petition or summons and the statements in writing of the claim or demand of any Plaintiff and of the defence of any Defendant thereto, and of the reply of the Plaintiff any defence or counter claim of a Defendant.Section 2 of the Civil Procedure Act defines “suit” as all civil proceedings commenced in any manner prescribed under section 2 means prescribed rules.Under section 19 of the Civil Procedure Act, every suit shall be instituted in such manner as may be prescribed by the rules. It will be observed that section 19 does not pretend that the Civil Procedure Rules have a monopoly on how suits may be instituted. It provides that suits may be instituted in the manner prescribed by the rules. There could be rules in other statutes on how proceedings may be commenced. For example, Probate & Administration Rules under the Succession Act prescribe how matters touching on succession of estates of deceased persons need to be instituted.It means therefore that where a person is commencing a civil suit to enforce a civil action, he needs to follow the prescribed rules.”

18. There is alsoRajab Kosgei Magut v Nuru Jepleting Choge [2020] eKLR cited by the Applicant in which Odeny J held as follows:“Order 3 Rule (i) (ii) provides that every suit shall be instituted by way of a Plaint or in such other manner that may be prescribed. As a general rule a suit can only be instituted by way of a Plaint, Petition or an Originating summons. A Notice of Motion is not legally recognized as an originating process. A Notice of Motion can only be filed within a properly instituted suit.”

19. In comparison, in the case of Geoffrey Karanu Rwenji v Rosemary Wambui Makokha (suing as the widow and personal representative of the Estate of James Aggrey Makokha - Deceased & 2 Others [2020] eKLR relied on by the 3rd Respondent’s Counsel, C. Ochieng J, upon examining the said Schedule 6, held as follows:“From a reading of this excerpt it is quite clear that instructions fees can actually be charged on a suit commenced by a Notice of Motion. In applying these provisions to the proceedings herein and since the previous matter had been concluded but the 1st Respondent was compelled to commence a miscellaneous cause to compel the Applicant to transfer the suit land to the highest bidder at an auction and the 1st Respondent having been awarded the costs, I opine that the 1st Respondent was indeed entitled to instructions fees. Further, pegged on the fact that the suit land was sold by public auction at Kshs. 5. 2 million and relying on the provisions of the Advocates Remuneration Order 2014, I find that the Taxing Officer did not err in principle by awarding Kshs. 120,000 as instructions fees and will proceed to uphold it.”

20. A comparison of the three decisions above gives a clear picture of why I state that the interpretation of whether proceedings commenced by way of a Notice of Motion can be construed to be a “suit” and if so, the effect thereof, depends purely on the context. While the decisions above may, on the face of it, appear to be in conflict, a closer look reveals that they are not. The supposed disparity only emerges because the Judges were considering different contexts.

21. I also cite the case of Sarah Chelagat Samoei v Musa Kipkering Kosgei & Another [2016] eKLR, in which, faced with an objection challenging assessment of instruction fees awarded on an Application seeking transfer of a suit, which is exactly the scenario presently before this Court, Ombwayo J held as follows:“This court finds that the application to transfer the suit from a subordinate court to Environment and Land Court cannot be defined as a suit but an ordinary application filed under Section 18(1)(b) of the Civil Procedure Act, 2010. The section contemplates the transfer of an existing suit and therefore, the application in itself cannot be a suit.The Taxing Officer misdirected herself to find that the proceedings to transfer the suit from Subordinate court to Environment and Land Court were a suit as the same was an application clearly defined in section 18 of the Civil Procedure Act, 2010. The upshot of the above is that the reference is allowed and the Bill of Costs is ordered to be taxed under Schedule VI(o) VII. of the Advocates Remuneration Order. I have taken into consideration the nature of the application being an application commenced in the High Court in respect of a matter in the subordinate court and the work-load involved and do grant Kshs.10,000/= as instruction fees.”

22. On my part, I agree with this holding by Ombwayo J since, unlike the other earlier decisions, his decision deals specifically and exactly with the same question now before this Court. There are various kinds of proceedings which by statute, are to prescribed to be commenced or originated by way of Notice of Motion. Such proceedings include, for instance, under the Arbitration Act, an Application to stay a suit in favour of referring it to Arbitration, under the Companies Act, an Application for extending time to register a Charge on land and an Application to rectify a company register and under Order 53 of the Civil Procedure Rules, a substantive Application for Judicial Review. Not all these proceedings should simply because they are all originated by Notic of Motion necessarily attract the same or uniform principles in assessing instruction fees.

23. In the present case, I take the position advanced by Ombwayo J above that Section 18 of the Civil Procedure Act contemplates the transfer of an existing suit and therefore, the application for transfer in itself cannot also amount to a “suit” for the purposes of assessing instruction fees. Even just logically, it is unreasonable to argue that a simple Application for transfer of a suit should attract the same principles in assessing instruction fee as for a suit commenced by way of a Plaint and in which parties have prepared, filed and exchanged witness statements, bundles of documents, statements of defence, carried out deep legal research, held pre-trial meetings with witnesses, canvassed various interlocutory Applications and conducted other time-consuming steps including numerous Court attendances. To argue in such manner would be to take an absurd position.

24. For the said reasons, like Ombwayo J, above, I agree with the Applicant that the Application for transfer of suit, being basically an Application arising from an existing suit, the instruction fee should have been taxed under the provision titled “matters arising during proceedings”. That section, titled paragraph (c)(viii), provides for instruction fees “to present or oppose any other application not otherwise provided for”. Instruction fees for an Application for transfer of a suit from one Court to another not being specifically provided for in the schedule, this in my view, is the provision to be applied. The paragraph prescribes that where the application is opposed, “such sum may be awarded as instruction fees as may be reasonable but not less than Kshs 5,000/=”.

25. I therefore find that in assessing the instruction fee and awarding the sum of Kshs 120,000, the Taxing Master erred in principle and as a result, awarded a fee manifestly excessive and too high.

26. To save on time and minimize further costs, rather than refer the Bill of Costs back to the Taxing Master for re-taxation, I will proceed to assess and award the reasonable instruction fees. Considering that the Application for transfer of the suit was withdrawn before determination by the Court and that the Respondent only filed a Replying Affidavit, I assess a reasonable instruction fee on the Notice of Motion at the sum of Kshs 30,000/-.

27. Needless to state, I confirm that in arriving at the said figure, I have taken into account, amongst other matters, the nature and the importance of the cause, the amount involved, the interest of the parties and general conduct of the proceedings.

ii.Whether the award of “getting up” fees was justified. 28. On “getting up” fees, paragraph 2 of Schedule 6A of the Remuneration Order 2014, provides as follows:“In any case in which a denial of liability is filed or in which issues for trial are joined by the pleadings, a fee for getting up and preparing the case for trial shall be allowed in addition to the instruction fee and shall be not less than one-third of the instruction fee allowed on taxation:

29. As to what connotes ‘getting up’, Ojwang J. (as he then was) in Shamshudin Khosla as Chairman, Abdul Gafur Pasta as Honorary Secretary & Mohamed Bayusuf as Treasurer (On their own behalf and on behalf of) the Members of Kenya Transport Association vs. Kenya Revenue Authority [2011] eKLR stated as follows:“From the foregoing authority, I would draw the inference that “getting-up” fees, in ordinary litigation, partially overlaps with instruction fees. Whereas instruction fees represent the formal commitment of the Advocate to a new client who thereafter gives sufficient instructions, in a process of hearing-and-receiving by the Advocate, getting-up fees relate to the first step (and possibly, later, equally-significant steps) which the Advocate takes, in preparing the pleadings and other vital process-documents, for lodgment and service.”

30. In arguing that “getting up” fees is payable in this instant case, the Respondent relied on the case of Nguruman Limited vs. Kenya Civil Aviation Authority & 3 others [2014] eKLR in which Lenaola, J (as he then was) stated as follows:“27. The Petitioner contended that the 1st and 2nd Respondents were also not entitled to a getting up fee because the matter did not go for trial and was decided on Affidavit evidence only. When deciding on this issue, the Taxing Master stated as follows;“The Respondent argued that the Applicants ought not have charged fees for getting up for trial because this matter did not go to hearing but was determined based on Affidavit evidence and Submissions. According to the Respondent 'hearing of a Matter' denotes the calling of witnesses and adduction of oral evidence in Court. Culminating into a judgment at the conclusion of the case. Counsel for the Respondent referred this Court to the case of National and Grindlays Barik (Civil Case No.1076 of 1964) and also quoted the book 'Judicial Hints on Civil Procedure' at page 147 and 148. I have gone through the same but I do not agree with the Submissions by the Respondent herein that fees for getting up is only allowable where the matter has gone to full hearing. I also do not agree with his Submission that hearing only entails the calling of witnesses and adduction of viva voce evidence.Schedule VI paragraph 2 of the ARO (2009) states as follows on fees for getting up:-'In any case in which a denial of liability is filed or in which issues for trial are joined by the pleadings, a fee for getting up and preparing the case for trial shall be allowed …...'The rule only envisages a situation where in a case, there is denial of liability. That was the case in this matter when the Applicants herein filed their response to the Petition. It matters not in which manner the matter was subsequently disposed off.As such, I find that fees for getting up was properly charged. I tax the same at Kshs. 200,000. 00 (One third of the instruction fees allowed at Items 1 and 2 above).”28. I agree with the Taxing Master and I am certain that he addressed his mind correctly to the law in reaching the above decision. Even if the taxing master had been wrong, it is clear that the 1st and 2nd Respondent are entitled to getting up fees. They contested the Petition. From the record before me, the 1st and 2nd Respondents' contested the Petition, filed responses to it, filed written Submissions and attended the hearing of the Petition which was argued before Mumbi J. on 28th November 2012. That to my mind makes the 1st and 2nd Respondent's entitlement to getting up fees as they clearly and separately denied liability for the actions complained of.

31. There is also the case of Republic vs. Egerton University Ex parte Patel Maulik Prasun [2020] eKLR, Ngugi J (as he then was), held that:“The Taxing Master taxed off the entire sum claimed as getting up fee. Her reasoning is that this was a Judicial Review Application that did not require preparation for trial involving witnesses. However, getting up fees are payable even for trials or court cases which do not require preparation of witnesses. For example, the Schedule envisages getting up fees for appeals which, obviously, do not involve preparation of witnesses. There is no good reason why getting up fees should not be payable for preparing for trial for Judicial Review Applications.”

32. I may also mention the decision of Nyamweya, J (as she then was) in Republic vs. Kenya Medical Supplies Authority & Another; Medox Pharmaceuticals Limited (Interested Party); Ex parte Nairobi Enterprises Limited [2019] eKLR where she stated that:“As regards the taxation of item on getting up fees and award of Kshs 166,666. 66/= by the taxing master for this item, paragraph 2 of Schedule 6A of the Advocates (Remuneration) Order 2014, only requires denial of liability in a case for getting up fees to payable. In addition, a close reading of the paragraph shows that contrary to the ex parte Applicant’s arguments, the matter need not proceed to full hearing, and it is sufficient that it is ready for and has been confirmed for hearing. It is not disputed that the present application was contested and proceeded to hearing.”

33. While I agree with the general statements of law enunciated in the above cases, I also note that the cases were all either Constitutional Petitions or Judicial Review (prerogative orders) Causes, modes of proceedings which are specifically and expressly mentioned in Schedule 6(1) under the description of “suits” for the purposes of taxation. The other proceedings expressly mentioned are Causes filed in relation to bankruptcy, companies, matrimonial causes, adoption and guardianship, election petitions and appeals. Clearly, on the face of it, these are substantially intensive, time-consuming and demanding proceedings which, in all fairness, would justifiably need to be treated in the same level as substantive “suits”. In the circumstances, the said decisions would not be of much assistance in the context of the case before this Court which is a simple straight-forward Application for transfer of a suit from one Court to another.

34. I am also persuaded by the case of C.N Kihara & Company Advocates v Maendeleo Ya Wanawake Organization (MYWO) [2021] eKLR, in which G.V. Odunga J (as he then was), stated as follows:“58. …………., it is clear under Schedule 6 paragraph 2 of the Advocates Remuneration Order, 2014 that no fees is chargeable for getting up and preparing for trial until the case is confirmed for hearing and in case where the case is not heard, the taxing officer must be satisfied that the case has been prepared for trial.”

35. In this case, besides already finding that the instruction fee ought to have been assessed under the paragraph in Schedule 6 tiled “matters arising during proceedings” which would therefore not attract getting up fees, since the Notice of Motion was withdrawn at an early stage, I am also not satisfied that the matter required extensive preparation for trial so as to merit or justify an award of getting up fees.

iii.Whether the instruction fees should have been awarded at 75% for the reason that the matter was withdrawn 36. In arguing this ground, the Applicant relied on Schedule 6, Part A (1) of the Remuneration Order 2014 which provides as follows:“1. Instruction feesSubject as hereinafter provided, the fees for instructions shall be as follows —(a)………………………………….…(b)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).(c)………………………………………..”

37. Having held that an Application for transfer of a suit from one Court to another does not fall within the definition of “suit” for purposes of taxation of costs, I find that the above provision would also not apply in this matter.

Final Orders 38. The upshot of my findings above is that the Application dated 26/10/2022 partially succeeds to the extent hereinbelow:a.The following items awarded in the decision of the Taxing Master contained in her typed Ruling dated and delivered on 11/02/2022 and arising from the Respondent’s Bill of Costs dated 10/02/2020 are varied to the following extent:i.The assessment and award of the sum of Kshs 120,000/- as instruction fees for defending the Application for transfer of suit (Item No. 1 of the Bill of Costs) is hereby set aside and substituted with an award of Kshs 30,000/-.ii.The assessment and award of the sum of Kshs 40,000/- as “getting up” fee (Item No. 31 of the Bill of Costs) is hereby set aside in its entiretyb.The rest of the awards made in the Ruling are left undisturbed.c.Each party to bear its own costs

DELIVERED, DATED AND SIGNED AT ELDORET THIS 3RD DAY OF NOVEMBER 2023. .....................WANANDA J.R. ANUROJUDGE