Kiboro v Unaitas Sacco Society Limited [2022] KECPT 1079 (KLR)

Kiboro v Unaitas Sacco Society Limited (Tribunal Case 150 of 2018) [2022] KECPT 1079 (KLR) (31 August 2022) (Ruling)

Neutral citation: [2022] KECPT 1079 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 150 of 2018

BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

August 31, 2022

Between

Antony Ndungu Kiboro

Claimant

and

Unaitas Sacco Society Limited

Respondent

Ruling

1. Before this Tribunal is a party to party Bill of Costs Application dated 11. 4.2022 filed by the Respondent.The total bill of cost amount to Kshs. 198,698/= and marked as part A, itemized from Number 1-23 and part B- marked number 25-34.

2. By an Application dated 3rd November 2022, the Respondent opposed the party to party Bill of Costs on the following grounds.a.That the Claimant acted in person yet the party to party Bill of Costs are based on schedule II of the Advocates Remuneration Order 2014 which is applicable when an advocate is employed.b.That the Claimant’s Bill of Costs include VAT which is not applicable for the reason that he has not supplied services.c.That the Claimant’ s claims on disbursements under part B are not supported by Receipts/or vouchers.

3. We have examined the filed party to party Bill of Costs and the Grounds of Opposition contained in the submissions of the Respondent and to help us to arrive at a just decision we go back to the facts on record.

4. At the beginning of this case in 2018 it is on record that the Claimant had instructed an advocate who filed a Statement of Claim, a Notice of Motion under Certificate of Urgency and a List of Documents all dated 30th April 2018. On 22. 5.2019, the Claimant filed a Notice for change to act in person and acted so.

5. For determination the Tribunal therefore frames the following issues:i.Whether the Claimant acted in person and whether he is entitled to the costs listed from number 1 -23 in the party to party Bill of Costs.ii.Whether the bill of costs filed should include VATiii.Whether the claimant is entitled to the disbursements listed from number 25-34 in part B?

6. The Respondent posited that according to schedule II part A of the Advocates Order 2014, the costs provided are only allowed to a successful party where an advocate has been employed. He stated that the claimant is not entitled to the costs because he acted in person.To buttress his argument, the Respondent quoted the persuasive case of Kisumu HCC.NO. 47/2011 Charles Lutta Kasamani T/A Kasamani & Company advocates versus Patrick Johnson Okwaro & Geoffrey Denis Oluoch TA Otieno Yoko & Company advocates 2015Where the learned judge stated that:“my understanding is that the spirit of the renumeration order was to reward a party who has expended resources in hiring an advocate by being reimbursed, so to speak what he spent”.However, when a party takes it upon himself to file or defend a suit then he cannot in my humble view ask for costs except the usual disbursement which he expended but not instruction fees. In essence he has not retain anybody to represent him. He is representing himself and any effort he has expended on the case inform of research and the usual trouble of going through in litigation has been done by himself. On the face of it, the persuasive Kisumu HCC 47/2011 is applicable to a party who decided/chose to represent himself/herself from the beginning. However, from the records of this case. The Claimant instructed an advocate in 2018 to draw and file for him a Statement of Claim, a Notice of Motion under Certificate of Urgency and a List of Documents all dated 30th April 2018. As a result of the Application stated, the Claimant obtained stay orders issued by this Tribunal on 30. 4.2018.

7. Accordingly, we allow the cost itemized as number 1 on instructions, drawing and filing of the suit to the extend of Kshs. 35,280/= as provided under schedule II paragraph 8 on the Advocates Remuneration Order 2014.

8. On the Bill of Costs indicated from number 2-11, we disallow them because they do not match up with the provisions of schedule II paragraph 10 (a).

9. Having notified the Tribunal on 22. 5.2019 that he will act in person, it therefore follows that the costs itemized from number 12-23 are disallowed because they are particularized in schedule II paragraph 10(b) as :for advocates attending hearings,” and therefore cannot be extended to a claimants who opt to represent himself/herself. In this regard, we draw a similar legal position in the court decision in the case of Wilson Wamweya versus Attorney General 2021 in which the court pronounced that:“ the fact that the Applicant at some point decides to act in person did not make him an advocate.”

10. In our view the amounts itemized as number 12-23 are to be treated as some income/payment to advocates for the time spent to attend to a case. It therefore can never be treated as an income to the claimant in his own case.

11. However, we allow the disbursements shown from item number 25 to 34 and order that the Claimant should produce evidence in terms of receipts /or vouchers.

12. On whether the claimants party to party bill of costs is to be subjected to VAT .

13. In our view, because the costs tabulated under part a from number 1 -23 is not income to the Claimant, he cannot subject such a cost to VAT. We therefore disallow.

14On disbursement cost under part B from number 25-34, we are of the view that since these payments have already been subjected again to VAT otherwise it will result to double -taxation.

15Accordingly, we disallow.

16In conclusion, having analyzed the party to party bill of costs as filed by the respondent we order as follows:a.Part A (1) Party to Party succeed to the extend of Kshs. 35,280/= as the cost to be taxed.b.Part (A) 2-23- costs are disallowed.c.Part (B) 25 – 34 – costs are allowed subject to the production of receipts/vouchers.Total Payable KSHS.35,280/=

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 31. 8.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 8.2023HON. BEATRICE SAWE MEMBER SIGNED 31. 8.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 31. 8.2023HON. PHILIP GICHUKI MEMBER SIGNED 31. 8.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 31. 8.2023HON. PAUL AOL MEMBER SIGNED 31. 8.2023TRIBUNAL CLERK JEMIMAHNdungu Kiboro claimant - presentHON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 31. 8.2023