Kuria v Chelule & 2 others [2022] KEBPRT 874 (KLR)

Kuria v Chelule & 2 others (Tribunal Case 120 of 2019) [2022] KEBPRT 874 (KLR) (Civ) (7 November 2022) (Ruling)

Neutral citation: [2022] KEBPRT 874 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case 120 of 2019

Gakuhi Chege, Vice Chair

November 7, 2022

Between

Alice Wanjiru Kuria

Applicant

and

Samuel Kiplangat Chelule

1st Respondent

Agnes Gachago

2nd Respondent

Samuel Kuria Mureu

3rd Respondent

(Originating from Narok ELC Appeal No. E001 of 2022)

Ruling

1. Before me is the applicant’s/landlord’s party and party bill of costs dated July 11, 2022 which was filed pursuant to the judgment delivered on March 11, 2022 in this matter in which this tribunal awarded costs of the suit to her.

2. The said bill is contested through the 1st and 2nd respondents’ submissions dated August 19, 2022 on the basis that the costs claimed by the applicant are either manifestly excessive, lack any basis in the Advocates Renumeration Order or are unsupported.

3. It is submitted inter-alia that the judgment herein is subject matter of Narok ELC Appeal No E001 of 2022 and that order for stay of execution of the judgment was made on June 5, 2022 on temporary basis. As such it is urged that this tribunal ought to stay the taxation of the instant bill of costs until the 1st and 2nd respondents application before Narok ELC is determined.

4. I note that the ELC Judge on June 8, 2022 gave an order of stay of execution of the judgment delivered herein on March 11, 2022 on temporary basis pending hearing and determination of the application. No order of stay of further proceedings was made in the said appeal.

5. What is before me is not an application for execution of the judgment but a bill of costs for taxation pursuant to the impugned judgment. In absence of any order for stay of proceedings, it is my considered view that there is no bar to the taxation. In any event, under section 14(1) of cap 301, Laws of Kenya, applications for execution of judgments or orders of this tribunal are supposed to be filed before the subordinate court.

6. Counsel for the 1st and 2nd respondents submits that court attendances are provided for under schedule 8, paragraph (a), (b) and (c) of the Advocates (Renumeration) (Amendment) Order, 2014 and there is no additional provision made for travel expenses to attend court under the schedule.

7. The said respondents contest items 6, 8, 10, 12, 15, 17, 22, 24, 28 and 32 being costs of the landlord’s advocate’s attendance during various hearing dates totaling to Kshs 54,000/- which are not provided for under the schedule as only costs of attendance and not travel are provided.

8. It is submitted in respect of item 6 that on October 3, 2019 when the matter was scheduled for hearing, the same did not proceed as the applicant sought seven (7) days to file further affidavit. As such, it is submitted that only a sum of Kshs 1,400/- ought to be allowed as a routine mention under schedule 8 paragraph (a) of the aforesaid schedule.

9. Attendance at hearing on October 3, 2019 when the matter was adjourned under item 6 will be allowed at Kshs 1400/-. I therefore tax off 4000/- as submitted by counsel for the 1st and 2nd respondents.

10. Item 8 is also attendance at the hearing by advocate on December 4, 2019 when the matter was put off. As this was the second hearing date but turned out to be a mention for compliance, a sum of Kshs 1400/- is awarded and I tax off Kshs 4000/-.

11. Item no 10 is taxed at Kshs 4000/- as provided under schedule 8 paragraph c (i) of the Renumeration Order. I tax off Kshs 14,00/-.

12. Item no 12 is taxed at Kshs 14,00/- and Kshs 4000/- is taxed off.

13. Item no 15 is taxed at Kshs 140/- and Kshs 4000/- is taxed off.

14. Item no 17 is taxed at Kshs 2100/- as the matter was adjourned at the behest of the 1st and 2nd respondents. A sum of Kshs 3000/- is taxed off.

15. Item no 22 is taxed at Kshs 4000/- and a sum of Kshs 14,00/- is taxed off.

16. Item no 24 is taxed at Kshs 4000/- and a sum of Kshs 1400/- is taxed off.

17. Item no 28 is taxed at Kshs 1400/- and a sum of Kshs 4000/- is taxed off.

18. Item no 32 is taxed at Kshs 1400/- and I tax off Kshs 4000/-.

19. Item no 6 is taxed at Kshs 4000/- and I tax off Kshs 5600/-.

20. Item no 30 is taxed off as there was no such attendance according to the court record.

21. Item no 27 is taxed at Kshs 1400/- and the sum of Kshs 2400/- charged under the item is reduced to that figure. Kshs 1000/- is therefore taxed off.

22. Items no 7,9,11,13,16,18, 21, 23, 25 and 29 are challenged on the basis that travelling expenses are not provided for under schedule 8 of the Advocates (Renumeration) Amendment Order, 2014 and that no proof is availed by the applicant for the said expenditure.

23. Paragraph 74 A(1) of the Advocates (Renumeration) Order, provides as follows:-“(1)The taxing officer shall allow reasonable charges and expenses of witnesses who have given evidence and shall take into account all circumstances and without prejudice to the generality of the foregoing factors:-a.The loss of time of the witness.b.If the witness is a party, the time spent giving evidence.c.The loss of wages or salary to the witness or his employer.d.The cost of travelling, boarding and lodging in accordance with the status of witness.e.Where the witness is a professional man any scale fee by which he may charge for his time or attendance,f.If the witness came from abroad, whether this was a reasonable means of obtaining his evidence where he has reasonably had to spend time, effort or money in investigating the particular matter on which he gave evidence”.

24. Paragraph 74 of the said order provides as follows:-“Subject to paragraph 74A, receipts or vouchers for all disbursements charged in a bill of costs shall be produced on taxation if required by the taxing officer”.

25. Although, no receipts or vouchers evidencing the amounts used for travelling to court by the applicant, It is on record that she was coming from Narok and I shall use my discretion under paragraph 74A to award her Kshs 3000/- on each occasion she travelled and I shall award Kshs 30,000/- for all the items and tax off Kshs 20,000/-.

26. This is because paragraph 74 grants me discretion to call for such evidence “if required” and it is my view that nothing prevents me from making an award notwithstanding that the vouchers and receipts were not called for.

27. Items no 14 and 19 are not supported by the court record and are taxed off.

28. Items no 34 and 35 are contested on the basis that the amount for document production, photocopy and attestation of affidavits is not supported. I however find the figure reasonable given the number of documents filed in this case.

29. These costs are allowed under paragraph 74 of the Remuneration order aforesaid.

30. I agree with counsel for the 1st and 2nd respondents that VAT is not chargeable on a party and party bill of costs in line with the decision in Pyramid Motors Limited vs Langata Gardens Limited (2015) eKLR. The sum of Kshs 109,488. 00 is therefore taxed off.

31. The total amount taxed off therefore is Kshs 159,788/- to leave the bill at Kshs 634,000/-.

32. In conclusion, the bill is taxed at Kshs 634,000/- and I order that a certificate of taxed costs be issued to the applicant in terms thereof.It is so ordered.

RULING DATED, SIGNED & VIRTUALLY DELIVERED THIS 7TH DAY OF NOVEMBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Omani holding brief for Karoki for the ApplicantNo appearance for the Respondents.