Kyalo Mbobu T/A Kyalo & Associates Advocates v Jacob Juma [2015] KEHC 4756 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MILIMANI CIVIL DIVISION

MISCELLANEOUS CIVIL APPLICATION. NO.  393 OF 2011

KYALO MBOBU T/A KYALO & ASSOCIATES ADVOCATES ……….APPLICANT

VERSUS

JACOB JUMA………………………………………………………..RESPONDENT

RULING

This  ruling determines the reference  filed on  13th August 2014  by the client  Jacob Juma against  the advocate  Kyalo Mbobu T/A Kyalo  Mbobu & Associates challenging the decision of  the taxing officer  Honorable A.K. Ndung’u (Mr) Deputy Registrar  delivered on 30th July , 2014  in respect of an advocate/client  bill of costs  dated 17th September 2011.

The reference challenges items NO. 1,41,42,192, 359, 460,468, all the items  consented on and comprised  in a consent letter dated  16th June 2014  and filed in court  on 23rd  June 2014 , the deduction of the taxed off  items and full credit  for a sum of Ksh 605,000 paid to counsels  representing  the client  in  the suit  and the  gross total tabulation.

The client also seeks for an adjustment to the taxation on the contested items as proposed   or as the justice of the case may require, in lieu of remitting the contested items back to a taxing offer.  He also prayed for costs of the reference.  The reference dated 12th August 2014 was premised on the grounds that:

a) The taxing officer erred in principle in the following aspects:-

(i) In proceeding to arbitrarily  assess, without  jurisdiction, proper basis or  discretion, the instructions fees( items No.1) purported to exercise  discretion   in a capricious  manner that  was unjustified , oppressive  and  not judicial by increasing  the maximum allowable  instructions fees of kshs 629,500  by more than double to  1,629,500 9 translating to therefore  being kshs 2,444,250. 00 advocate /client  fees which is  grossly exaggerated, excessive  and gratuitous  taking into account that  the matter is still pending  in court and only an  application has been handled.

(ii) The Deputy Registrar erred in allowing any costs under items 41, 42,192, 359, 460, 468, under the Advocates Remuneration Order.

(iii)  The taxing officer  erred in principle  by failing to appreciate that the  consented  items  in the bill amounting  to Ksh 214,683. 00,  the uncontested items  in  the bill amounting  to Ksh  215,32. 00, the disbursement  amounted  to Ksh  13,178. 00 and instead proceeded on the wrong premises that misrepresented the bill, hence  wrongly allowed an unjustified  surplus  of kshs 5,573,682. 00 in favour of the Advocate.

The Reference is further supported by the affidavit of Jacob Juma sworn on 12th August 2014.

According  to the client, the taxing officer  erred   in law and in effect violated  the provisions of  the Advocates Remuneration Order  by awarding full instruction fees of Ksh 629,500 on a claim for the sum of  kshs 41,400,000 whereas the court case is still pending  and there was another  advocate on record representing  him in ELC No. 312 of 2009.

I his view, the fees as allowed was not commensurate with the services rendered and is charged for the entire suit.

The client  complains that  the taxing master  had no jurisdiction to increase the instructions  fees by  an extra one million, which exercise  of discretion was arbitrary, capricious, excessive , unreasonable  and unjustified and gratuitously  given  to the advocate.

It is further contended that the parties advocates had consented to some items in the sum of kshs 214,683 as per the signed consent letter dated 16th June 2014 and filed in court on 23rd June 2014 but the taxing officer ignored the said consent.

The client further 0insisted that the taxing officer should have given credit a sum of kshs 605,000 paid to the lead advocate and the lead counsel.

That some items were unsupported and that taking into all the circumstances of the case, the taxing officer should have allowed only kshs 1, 252, 919. 58 and not kshs 5,573,683. 33.

The advocate opposed the Reference as filed and filed replying affidavit on 4th September 2014 sworn by Kyalo Mbobu on 28th August, 2014.  Mr Kyalo Mbobu supports the decision of the taxing officer and maintains that the taxing master did provide satisfactory explanation in his ruling  why he  arrived at  the taxed bill.

It is further deposed that the client cannot   file Notice of objection as  well as  a chamber summons seeking to vary and or set aside  the order  of the taxing officer, and or  alleging  irregularities  in the taxation of the bill.

It is further deposed that there was no dispute regarding disbursement.   Further, that the suit property is valued  at over  150,000,000 before valuation and not 41,400,000. Mr Kyalo  Mbobu  denied that the Ksh 605,000 was paid  to him as the evidence   available  shows that it was  paid to J.P Machira  & Company Advocates  who were instructed  by the client  herein.

He maintains  that the instructions  fees  was not agreed upon hence  the taxing  officer was justified  in increasing  it having  explained  why he  allowed it, owing to the volume and complexity  of the work done and that as an  advocate who had done work for the  client  as instructed, he should be remunerated and not impoverished.  Counsel complains that by the respondent writing to the Chief Justice  over the matter, he was  intimidating the Deputy Registrar  so that  they can  deviate  from their  just cause  and urged the court to dismiss the  chamber summons.

Both parties   agreed to dispose of the chamber summons by way of written submissions after attempts to resolve the dispute out of court failed to bear fruit.  The advocate  sought leave of  court on 18th December 2014  to file a  supplementary  affidavit  and was granted  14 days  but  as at the time of  writing this ruling, none had  been filed.

On 9th February 2015 this court confirmed that indeed both parties had filed their respective submissions. The applicant/client filed his on 30th January 2015 whereas the respondent /advocate filed his on 6th February 2015.

The parties’ respective submissions mirror the depositions in their sworn affidavits.  According to the client , the taxing  master  inadvertently  failed to factor  in a consent filed in court  on 23rd June 2014  where  several items  were agreed upon  and adjusted  accordingly.  It is submitted   on the client’s behalf that the contested items are

Instructions fees

Arithmetical calculations

Whether   full credit should be given to monies paid to the advocate and his lead counsel Mr J.P Machira.

In the clients view, the taxing officer correctly estimated the value of the property as kshs 41,400,000 and therefore he was right in assessing party and party costs on the said value as kshs 629,500.  The  quarrel, however, is that the taxing officer proceeded  to increase  the instructions fees by a further 1,000. 000/- which increase was  in the client’s view, unjustified, oppressive, excessive , unconscionable and gratuitous  wrong  exercise of his judicial discretion.  He  complains  that the suit  had not even  been set  down for hearing  and that  the prayers  were the usual ones  in  the suits seeking for injunction, declaration, damages and  interest  at commercial rates, disclosing  nothing extra ordinary in nature  to warrant  the  exorbitant  instructions fees.

The client submits that there was no material before the Deputy Registrar that guided him in arriving at the conclusion that the matter was complex.  Further, that the Deputy Registrar  did not apply  himself to the principles in Rule  5 of the Advocates Remuneration Order  which  prescribes  the exercise  of discretion to award  fees  beyond the prescribed  fees.  That since the advocate was assisted by lead   counsel in a simple claim of alleged trespass to property and loss following the trespass, there was less labour expended by the advocate.  Further, that in such a suit, clear records from lands office would be readily available to identify the true owner of the land and the trespasser.

That the Deputy Registrar introduced an element of surprise, caprice and arbitrariness in the taxation process.  Further, that he  did not  consider the submissions  that the fees  paid to the lead counsel  should be  discounted  since J.P. Machira  participated  in the suit  with full consent  and authority  of the advocate.  He  urged the court to consider  Rule 79  of the Advocates  Remuneration Order to  award costs  at a lower rate than that  provided by the order  since the suit  had not  taken off  and there was a  new advocate  on record  who will be  paid  full fees   for the services  rendered which services are a lot  more than  what the  advocate  did.

On the wrong computation of the fees, the client submits that the correct total figure should be 1,252, 919. 58 and not 5,573,682. 33.

In the advocate’s opposing submissions, it is contended that the contested  bill of  costs is in respect of instructions given  to the advocate  by the client   to defend in HCC 312/2009, Amrittal Shah  & Another  vs. Jacob Juma  & 2 others which suit was highly  contentious  over the ownership  and possession of L.R NO. 18485(IR 64014) Loresho, Nairobi which is approximately 7 acres along Kabete road, near the Kenya School of Government.

Further, that at the time when the  client /advocate relationship soured, the pleadings  had closed and that the  advocate industriously  opposed  an injunction leading to the dismissal thereof vide ruling delivered  on  26th July 20101 and therefore  the issues  for trial having been settled, the suit was  for all practical purposes  ready for trial.

The advocate framed three main issues for determination in the chamber summons namely:

Whether  the exercise  of  the discretion  of the taxing  master  in assessing  the  applicable  instructions fees  is proper,

Whether there were any arithmetical errors of computation by the taxing  master.

Whether monies paid to a lead counsel J. P. Machira should be deducted from the instructions fees due to the advocate on record to wit, the applicant.

On issue No. 1, the advocate  submits  that the  taxing  master  correctly exercised  his discretion  in assessing  the instructions  fees  as he did and that  he applied  himself  to the settled principles .  He relied on the case of Thomas James  Arthur vs.  Nyeri   Electricity Undertaking (1961) EA 492wherein it was held that:

“1) Where  there has  been an error in  principle  the court will interfere, but  questions solely of quantum are  regarded as matters which taxing masters are particularly fitted  to deal with and  the court will intervene only in exceptional circumstances.

(ii) The fee allowed was higher than seemed appropriate , but  in a matter  which must remain essentially one of opinion, it  was not so manifestly  excessive  as to  justify treating it as indicative  of the exercise of a wrong  principle.”

The  advocate  has disputed the estimated  value  of the land as  found by the  taxing  officer  and notwithstanding  the absence  of a valuation report, urges  this court  to take judicial notice of  the astronomical  rise  in value  of the  real estate  in Nairobi  and to find  that the  value thereof was at least  kshs 150,000,000 and not shs 41. 4 million  suggested.

The issues for determination in this reference are clearly three.

(1) Whether  the taxing officer  applied  wrong  principles  in assessing item 1  of the Advocates bill of costs  by increasing the instructions fees  by an additional 1 million shillings, having  found that  from the pleadings  the value of the subject matter was  kshs 41,400. 000.

The advocate  for the client  submits  that the taxing officer should  have  stopped at  the figure  of kshs 629,500 having found  the value of property to  be 41. 4 million and that  the extra 1  million  assessed in favour of the advocate was gratuitous, capricious, unjustified and excessive as there  was no justification for such an award.

On the other hand, the advocate supports the taxing master’s assessment  save that he urges this court to consider that  there was no basis  for suggesting and or basing  the value of the property  at 41. 4 million and  urges the court to  find that  the property  was valued  at 150 million.

Disposing off this aspect  of submission  by the advocate is essential  before  going further  first, the advocate did not contest  by way of any objection, to any  of the items as taxed  by the taxing officer, he, in principle, supports the assessment   and that is the reason , I believe, he did not file any objection or cross reference .  Even if a valuation  report  for the value  of the subject  matter of the suit   which  was not  submitted at the time  of taxation was to be availed at this stage determining  the ‘exact value of the property subject  of the dispute  and the bill of costs, this court would not  be inclined to review that item of instructions fees to base it  on the new  value  of the  subject  matter  as there is no  cross reference  filed by  the advocate  in objecting  to any of the items  of the  taxed bill of costs.  Furthermore, the review strictly speaking, based on a new and important matter could only be made before the taxing officer before taxation by an amendment to the bill and not before this court by way of submissions as those are matters which the taxing master had already pronounced himself on by disregarding the value given by the advocate in the bill.

The other  reason for dismissing  that contention by the advocate is that  the value of the subject matter of a suit  for purposes  of the taxation of  a bill of costs  whether  party and  party or advocate  client  under the Advocates Remuneration  Order ought  to be determined from the pleadings, judgment or settlement.  But if  the same  is not so ascertainable, the  taxing officer is entitled  to use his  discretion  to assess  such instructions  fees as he  considers just, the nature  and importance  of the cause or matter, the interest  of the parties, the general conduct of  the proceedings, any direction by the trial Judge and all other relevant circumstances, as espoused in Schedule V1A 1 of the Advocates Remuneration Order.

If  the advocate, therefore, having quoted the  value of  the property  as 150 million  was  unable  to persuade  the taxing master  to award  him instructions fees based on that figure and opted  not to oppose/object  to the assessment    by the taxing  master, he  is estopped  from raising  the objection at this stage.

Back to the main issue of the instructions  fees, the client  does not  object to the kshs 629,500  awarded  based on what  the taxing master  considered to be the value  of the subject matter  and which he stated, was clear  from the pleadings, was kshs  41,400. 000. He however  laments  that there was  no justification for awarding  he extra  one million and contends that the  extra  award  was manifestly excessive  and merits  interference  by this court.

In the matter of Kipkorir  Tito & Kiara  advocates  vs. Deposit  Protection Fund (2005) e KLR 528, the Court of Appeal  held as  follows  concerning interference   with the taxing  officer’s  discretion  in matters  of taxation:

“ 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  with and the court will interfere only in exceptional circumstances.”

This was also  the common thread  in the cases  of First American Bank of Kenya vs  Shah & others (2002) 1 EA 64; Nyangito & Co. Advocates  vs   Doinyo  Lessos  Creameries  and Preinchand Raichand  Ltd & another vs. Quarry  Services  of EA  Ltd & another (1972) EA 162  and  TJRC vs. Chief Justice  of the Republic  of Kenya & another (2014) e KLR.

The question therefore is , was the taxing  officer justified  in increasing the instructions  fees by  an extra one million, having  established  that basic  instructions fees was  kshs 629,500 based  on the value of the subject  matter  as gleaned  from the pleadings.

Schedule VIA (a)  of the Advocates Remuneration Order provides that:-

1. Instructions fees.

“The fee for instructions in suits shall be as follows; unless the taxing officer   in his discretion shall increase or (unless otherwise provide) reduce it;

a) to sue  in any proceedings, whether  commenced  by plaint, Petition, Originating Summons , or  Notice of Motion) in which  no defence 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 that value  exceeds but does not exceed sh……..sh………………shs…………………………………….

over 750,000/-           13,500

plus  1% of the amount

over  shs 750,000”

In defended  cases, the above mentioned  sum of Ksh  13,500 stands  increased  to  Ksh 36,000 up to  a value  of Ksh  750,000, over  the that amount  the instruction  fees is to be calculated  at one per  cent  on the amount over 750,000.  It is the above formula which the taxing officer used to arrive at Ksh 629,500 instruction fees.

On the extra one million the taxing master stated:-

“There were further prayers in the plaint seeking injunction, declaration, damages and interest at commercial rates.  This no doubt adds to the weight, complexity, interest and importance of the matter to parties.  In my discretion, and considering the above, I allow a further kshs 1,000,000 in instructions fees.”

Rule 5 of the Advocates Remuneration Order provides that:

“(1) in business  of exceptional importance  or unusual complexity  an advocate  shall  be entitled  to receive and shall  be allowed as against  his client a special  fee in  addition to the remuneration provided in this order.

(2)  In assessing such special fee, regard may be hard to –

The place at or the circumstances in which the business or part therefore is transacted.

The nature and extent of pecuniary  or other interest involved;

The  labour and responsibility entailed; and

The number, complexity and importance of the documents prepared or examined”.

The principles  of  taxation were set out  in the Court of Appeal’s decision  in  Premchand Reichand vs. Quary Services  of EA Ltd & others EALR (1972) EA 162 as follows:-

“(i) (a) That costs  be not allowed to rise to such a level as to confine access to the courts to the wealthy;

(b) That a successful litigant ought to be fairly reimbursed for the costs that he has had to incur

( c) That the general level  of remuneration of advocates  must be such as  to attract  recruits to the profession and

(d) That so far as practicable there should be consistency in the awards made.

(ii) The court will only interfere  when the award of the taxing officer is so  high or so low as to amount  to an injustice to one party;

(iii) In considering bills taxed  in comparable  cases allowance may be made for the fall in value of money.

(iv) A part from a small  allowance to the appellant for the responsibility  of advising the  undertaking  of the appeal there is  no difference  between  the fee to be  allowed to an appellant as distinguished  from a respondent.

(v) The fact that counsel from overseas was briefed  was irrelevant: the fee of  a counsel capable of taking the appeal and not  insisting  on the fee of the most  expensive  counsel must be estimated ( Simpson Motor  Sales v Herdon  Corporations (2) followed………”

No doubt, the  power to tax costs is discretionary  and if I was to come to the  conclusion  that the  taxing officer  erred in principle, the correct course of  action would be  to refer the bill back  for taxation by the  same  or a different  taxing master- See Steel Constructions Petroleum Engineering (EA) Ltd vs. Uganda  Sugar Factory (19770) EA  141Where Spry JA at page 143 stated:

“…….Although a judge undoubtedly  has jurisdiction  to retax a bill himself he should as a matter of practice do so only to make corrections which follow from his decision and that general rule is  that where  a fee has to be  reassessed  on difference principles, the proper cause  is to remit to the same  or other  taxing officer.  I would agree that, as  a general statement, that is correct adding  only that it is a matter  of juridical discretion”.

The Court of Appeal in Joreth Ltd  vs Kigano & Associates  (2002 1 EA  92  was categorical that the  judge  sitting  on a reference  against  the assessment  of instructions fee by the taxing  officer  ought  not to  interfere with the  assessment  of costs unless the taxing  officer had misdirected  himself on a matter of  principle.

The Joreth case also gave some guidelines or principles to be applied by a taxing officer in exercise of his discretion to increase the instructions fees.  That the taxing officer must demonstrate in his ruling the reasons for increase of fees:-

Care and labour required by the advocate.

Specify the number and length  of the papers  to be perused,

The nature  and importance  of the matter ,

The value (where ascertainable ) of the subject matter

Interest  of the parties

Novelty of the matter.

And  in Ramesh Naran Patel vs. Attorney General & Another (2012 e KLR Emukule J observed that each of the  elements  must however be broken  down cogently with specifity (  and generalizations), as stated in the  case of Republic vs. Minister for Agriculture  Exparte Samuel Muchiri W/Njuguna (2O06) e KLR .

In the instant  case, the taxing officer  in  awarding  the instructions  fees further  stated; citing from  the Joreth ltd vs. Kigano Case (supra):-

“  The  instructions fees  is an independent  and static  item, it is  charged  once only and it is not  affected  or determined  by the stage the suit  has reached”.

The record shows that the taxing officer did not consider the stage  the suit had  reached, when he made an award  of instructions fees. I agree with him to that extend.

From the above established legal principles, it is trite that the taxing officer has the power and discretion to either increase or reduce instructions fees.  Such discretion, however, must be exercised judiciously and not capriciously.  It must also be based on sound principles, since taxation of bills of costs is not an exact science.  It is a matter of opinion as to what amount is reasonable, given the particular circumstances of the case, as no two cases are necessarily the same. And as was correctly observed in the Joreth vs. Kigano (supra) case and Ramesh Naran Pater vs. Attorney General & another (supra) case, the taxing officer must apply the laid down principles and specify, not  generalize his or her justification for increasing or reducing the instructions fees.

Applicable statutory law /instructions fees for contentious matters are charged under Schedule V1 of the Advocates Remuneration Order 2009. In the proviso to Schedule VI  the taxing officer, in exercise of his discretion in matters  arising  during  proceedings, shall take into  consideration the other fees, and  allowances of the advocate, if any  in respect of the  work to which  such allowance  applies, the nature  and importance  of the cause, the  amount involved, the interest  of the parties, the general conduct of proceedings, a direction by the trial judge, and  all relevant circumstances(emphasis added).

The applicant’s contention is that  the taxing officer failed to take  into account relevant  factors and  well settled  principles  of law  in considering  the quantum pertaining  to item  1 of the Bill of Costs (instructions fees and consequently awarded an  extra (gratuitous, oppressive and unconscionable additional) one (I,000,000,000) million to the  basic instructions  fees which is manifestly excessive  and exorbitant  and or unjustified  and that  in so doing  committed an  error in principle.

The subject matter in the primary suit was a claim for injunction, declaratory orders, damages and interest at commercial rates.  In the dispute the client   was sued as defendant involved a prime piece of land in Karen within Nairobi County whose conservative value was provisionally given as Ksh 41,400,000, which figure the taxing officer   applied in setting the basic instructions fees at Ksh 629,500 and in increasing that instructions by an extra one million, the taxing officer stated that he had considered that there were other prayers on record.

The applicant contends  that the  work involved did not  go beyond the ordinary work of  counsel to warrant   increase of instructions fees  as provided  for in Schedule VI  in Republic  vs. Minister  of Agriculture  & 2 others  Exparte Samuel Muchiri W Njuguna &  others (2006) e KLRthe court held:

“The complex elements in the proceedings which guide  the exercise  of the taxing officer’s discretion  must be specified  cogently and with conviction. The nature of the forensic responsibility placed upon counsel, when they prosecute, the substantive proceedings, must be described with specifity. If novelty is involved in the main proceedings, the nature of it must be identified and set out in a conscientious mode.  If the conduct of the proceedings necessitated the deployment  of a considerable  amount of  industry, and was  inordinately  time consuming,  the details  of such  a situation  must be  set out  in a clear manner.  If large volumes  of  documentation had to be clarified,  assessed  and simplified , the details  of such  initiative by counsel  must  be specifically indicated  apart of  cause from the need  to show if such  works have not already been provided for under a different  head of costs.”

At page 15  of the above  case, the court added:-

“ If  follows  in my view, that the responsibility entrusted  to counsel  in the  proceedings was quite  ordinary, and  called for  nothing but normal  diligence such as  must attend  the work of  a professional in any field.  I have to state that  there was nothing  novel in the proceedings  on such  a level as  would justify any special allowance in costs”.

Still on the issue of increase of instructions fees, the court in First American Bank of Kenya Ltd vs. Gulab P shah & 2 others (2002) IEA 64 Page 70-71stated:

“As regards the increase of instructions fees, I accept  that this  is a matter of  discretion of the taxing master. However, the discretion must be exercised rationally.  Now the only reason given by the taxing officer there to increase the fees is that the defendants had done  some research  on the law and they had put  a well researched defence. I am  of the opinion that if a  defendant  does research before  filing  a defence  informed by such a research  he had done  no more than  expected.  The research is not necessarily indicative of the complexity of the matter.  It may well be indicative of the advocate’s unfamiliarity with basic principles of law.  Such unfamiliarity should not be turned into an advantage against the adversary.”

In the  view of the applicant client, the suit  was an ordinary one involving  the usual prayers for injunctions, damages, declarations and interest  at commercial rates, which  regrettably ,the taxing office after  determining  that the value of the  subject matter could be determined  from the pleadings as Ksh  41,400. 000 went overboard  and increased the figure to Ksh 629,500 by an extra  one million, on account of those prayers for injunction, declarations, damages  and interest  at commercial rates.

Indeed, beyond making a general observation to that effect, the taxing officer did not describe or specify the nature of forensic responsibility placed upon counsel when defending such a suit.  He did not also mention any novelty involved in the main proceedings and the nature thereof.  The taxing officer did not even mention whether the suit involved in his view, large volumes of documentation that had to be clarified, assessed and or simplified and the details if such initiative specifically indicated.  He did not specify what research if any was necessary or was proven to have been undertaken by the advocate to justify the increase on the instructions fees.

In my humble view, fees changeable  by advocates are facilitative  of access  to justice for all irrespective  of status  as espoused in Article 48  of the Constitution that:-

“Thestate shall ensure access to justice for all persons, and, if any fee is required, it shall be reasonable and shall not impede access to justice”.

The above Constitutional provision breathes life into the case of PremchandRaichand vs. Quary Services EA Ltd No. 3 (1972) EA 162 where the Court of Appeal held:-

That costs should not be allowed  to rise to a level as to confine access to the  courts  to the wealthy;

That a successful litigant ought  to be fairly  reimbursed  for the costs  he has to incur.

That the  general level of  remuneration of advocates must b such  as to attract  recruits  to the profession; and

So far as is practicable there should be consistency in the  awards made.”

The advocate/respondent opposed the reference vehemently  contending  that he did  voluminous  complex  work, argues applications for injunctions  successfully and attended  court severally and perused heavy documentation to  justify the increase  in the instructions fee.

Indeed, that may be so, as shown by the lengthy itemized bill of costs whose specific items on court attendance, research and perusals have not been objected to, substantially.

However, it was expected  that the  taxing  officer  would apply himself  to those facts and make  formal specific  pronouncements regarding  what he  considered  as relevant factors  and or principles  that guided  him in  exercising his judicial discretion to increase the instructions  fee by  one million Kenya Shillings, especially in a case where already the value  of the subject  matter could be  ascertained from the pleadings .

As was held by Emukule J in Ramesh Naran Patel vs. Attorney General & another  (2012) e KLR, drawing  inference  from the guidelines  set out on the Joreth vs. Kigano & another (supra) case that:

“the taxing officer’s discretion in exercise of his discretion to increase the instruction fee are clear.  He must demonstrate in his ruling the reasons for increase of fees-

Care and labour required by  the advocate;

Specify the number and length of the papers  to be perused;

The nature and importance of the matter;

The value (where ascertainable) of the subject matter.

Interest of the parties;

Complexity  of the matter, and

Novelty of the matter.

Each  of these  elements  must however  be broken  down cogently with  specificity  ( and not  generalization) , as  stated  in the cases cited above and in particular, Republic  vs Minister  for Agriculture, Exparte Samuel Muchiri W’ Njuguna”.

In this case, in my view, the taxing officer erred in principle in generalizing the complexity, importance and nature of the matter, interest of the parties, the weight care and labour required by the advocate and the novelty of the matter.   It was not sufficient to state as he did that:-

“there were further prayers  in the plain seeking  injunction, declarations , damages and interest at  commercial  rates.  This no doubt adds to the weight, complexity, interest and importance of the matter to parties. In my discretion, and considering the above, I allow a further kshs 1,000,000 in instructions fees”.

It will be noted that the advocate did not even pray for such an increase.  He did not seek for it other than estimating the value of the suit property to be more than kshs 150,000. 000.  That could be the reason why the client is so furious with the Ksh 1 million extra that he calls it gratuitous.  It was an unsolicited discretion as the advocate did not urge the taxing officer to invoke the discretion having provided the estimated value of the suit property. The client’s legitimate expectation was that of getting a fair and just verdict on the same as 41. 4 million was not a liquidated claim separate from the other prayers. Furthermore, since there was no separate prayer for an increase, the client did not have an opportunity to respond to the issue as to whether or not the advocate was entitled to the same.

The taxing officer was under a duty to state why  he believed  the matter  was complex, weighty, important and or generated  what  amount of interest  to warrant  an increase especially where  the value  of the subject  matter could be ascertained  from the plaint as  correctly found by him when  awarding  the figure  of Ksh 629,500 based on Ksh 41,400,000.  Most probably, what the taxing officer had in hind sight while taxing the bill was that the Ksh 629,500 was manifestly low compared to the labour in the suit.  However, in my view, it was erroneous for him to fail to specify or justify the labour and instead base the increase on generalizations. This has nothing to do with trivializing the work done by the advocate as the respondent client would have wished this court to find in this case. Even if the taxing officer was to allow costs at a lower rate or reduce such instructions fees, he could only do so with reasons as espoused in Rule 79 of the Advocates Remuneration Order. I do not find that the case subject matter of this reference was of such trivial nature as to warrant a reduction of the advocate’s fees, in as much as I do not find it to have been extraordinarily complex.

For those reasons, I find that decision by the taxing officer to award to the advocate extra additional instructions fees of Ksh. 1 million was erroneous and proceed to set it aside. The award of Kshs 629,500/- is sustained.

On the second issue of whether  the taxing  officer should have set off  605,000 paid  to the lead counsel M. J.P Machira, the evidence on record is clear that it  was the client/applicant  who sought  the services  of an extra hand, Mr  J.P Machira, to provide  support and lead  in the defence  of the case against  the applicant client.  There is no evidence that Kyalo Mbobu advocate ever requisitioned for support of another advocate and or that he agreed to share his legal fees with another advocate.  This court does appreciate the vagaries of litigation, particularly in land matters, which may have justified the client seeking for an  extra hand.  But that choice was in his absolute discretion.  In the circumstances it would be unfair  and unjust to deny an advocate his hard  earned costs, even if a matter had not  been fully heard and or concluded  simply because  another advocate  was coming  on record  to do much more  work than what the previous advocate did in the circumstances with the  help of  an additional advocate.

Instructions  fees being a static fee,  as correctly observed by the taxing officer, it would  be out rightly  wrong  for this court  to interfere  with the  discretion  of the taxing officer  solely because  it thinks the award  is too high  or too low, unless such award  whether  too low or too  high amounts  to an injustice to one of the parties.

In a letter dated 12th August 2011 by the client to his advocate the respondent herein, the client stated at paragraph 2 thus:

“REF: HCC ELC 312/2009 ASHOK R. SHAH & ANOTHER VS JACOB JUMA & 2 OTHERS

My verbal instructions to Ms Havi & Company  advocates  on this matter was regarding  him acting as lead counsel  the way Mr Machira  acted  in the  injunction  of application.  This does not amount to change of advocates and agreement between yourselves and I on this matter, In any case I pay for extra costs myself”

The above  letter was in response to the advocates  letter dated 1oth August  2011 wherein  the advocate  was categorical that  “ what   JP Machira had earned as  his fees was none of  our business  that was  his fees”.

In the letter dated 8th August 2011 from client to the advocate herein, the client at paragraph 2 states

“ I have so far spent  Kenya shillings six hundred  thousand  in  legal fees  on this matter  and I shall not deduct Machira advocates from your earlier  agreed instructions fees with myself”.

The client also by his letter of 12th August 2011 to the advocate at paragraph 5 makes it clear that “the payment to Mr J.P Machira & Advocates as alluded to in our letter are self explanatory. He justifiably earned it by successfully arguing the lifting of the injunction granted to the plaintiff   earlier in this suit”.

In the  receipts   showing payments  made  to J.P  Machira  & Co advocates, the acknowledgement  are clear that  the monies were received from the  client as “ further deposit on legal fees.”

There is no mention that the money was being received as a share in the legal fees agreed between the client and Mr Kyalo Mbobu advocates jointly with Mr. Machira advocate (lead counsel).

In addition there is no evidence that Mr. J.P Machira advocate was being paid a token. It was legal fees for work done.

There is also no evidence that the law firm of Machira & Company and Kyalo Mbobu & Company advocates were partners, though for purpose of the suit, they acted jointly.

What this court deciphers from  the conduct  of the parties is  that in the absence of any specific  agreement, Mr Machira  was instructed  by the client  who was prepared  to pay him the extra  fees for providing lead support  to Mr Kyalo Mbobu advocate.

There is also no evidence that the client paid fees to Mr Kyalo Mbobu advocate with conditions that the advocate must share it with Mr J.P Machira advocate.

There would be indeed, no illegality  if the two advocates  were to share  legal fees but in this  case,  there was no such agreement  and neither   has the client  procured the affidavit evidence of Mr J.P Machira  advocate  to clarify  whether  there was such agreement, whether  oral or in writing.

Section 3(4) of the Evidence Act is clear that:

“A fact is not proved when it is neither proved nor disproved.”

In this case, the burden of  proving that  there was such agreement  that the fees  payable  to Mr Kyalo Mbobu would be inclusive  of what was  to be paid  to Mr. J.P. Machira  advocate  lay on the  client, under Section 107 of the Evidence Act  that he  who  alleges  must prove.  That burden was not discharged, in this case, on a balance of probabilities.

After considering the matters before the court, this court does not believe that there was such an arrangement to share the fees paid to the advocate with J.P. Machira advocate.

Nothing prevented the client, who was the boss/employer and or retainer for the two advocates to insist that the fees payable to Kyalo Mbobu advocate would be all inclusive for the two advocates.

For those reasons, this court is unable to find any merit in the clients’ contention that the taxing officer should have deduced Ksh 605,000/- from the amounts due to Kyalo Mbobu advocate, the sums of money paid to J.P Machira advocates. I dismiss the claim and sustain the finding by the taxing officer that there was no evidence to show that the advocate herein is the one who instructed J.P. Machira to come and assist the advocate, Mr. Kyalo Mbobu. I find that the client instructed Mr. Machira advocate to provide support and lead the defence team at the client’s own expense and it would be unfair and unjust to unnecessarily burden Mr. Kyalo Mbobu advocate with an order that he takes responsibility and shares his fees with Mr. J.P. Machira advocate.

The third issue concerns the inclusion of the alleged unjust surplus contained in the consented items but which the taxing officer is alleged to have failed to take  into account.

This court  notes that  on 23rd June 2014  by a consent dated 16th June 2014  and signed  between the applicant client   and the advocate, the parties  agreed  to alter the various  431 items  in the  bill of costs.

The taxing officer did write to the parties on12th August, 2014 clarifying that there was an oversight on the part of the parties in failing to  have the said consent adopted by the court, that is why the consented to items were never taken into account in the tabulations. It is true that there is a consent filed by both parties on 431 items but there is no evidence of adoption of that consent as an order of the court. That cannot be an oversight on the part of the parties. It is the duty of the court to give effect to consents filed by the parties. The court in this case did not do so. In my view, the taxing officer ought to have seen the consent on record and adopted or acknowledged it before concluding his taxation. That was an inadvertent error which this court can correct by adopting the said consent and which I hereby adopt as the order of the court.

The above issue has been conceded to by the advocate as an arithmetical error hence there is no prejudice in adopting the said consent. Accordingly, those items as per the consent that should have been adjusted  in the bill  but were  not, this court accordingly makes an order that they be adjusted as appropriate to accord with the consent and order herein adopting the consent between the parties.

The applicant client   having framed the three issues  above for determination  as the contentious  issues, I consider the objection to items  Nos. 41,42,192,359,460,468  abandoned  and say  no more.

In the end, I make the following orders:

(1) The client’s reference dated 12th August 2014 is allowed to the following extend:-

The additional instructions fees  of one million (1,000,000,000) awarded on item No. 1 of the bill of costs dated 12th September 2011 by the taxing officer is hereby set aside and struck out;

The prayer that full credit for the sum of Ksh 605,000/- paid to J.P Machira advocate for representing the client in the suit is hereby dismissed.  The credit of Ksh 300,000/- given by the taxing officer to the client as conceded by the advocate is  sustained;

There shall be adjustments  to the  taxation  on the items consented to as per  the consent dated 16th June  2014 and filed on 23rd June 2014  as herein adopted by the court.

The awards on items No. 41,42,192,359,460 and 468  having been abandoned  by the client  are sustained  as awarded  by the taxing officer;

All other items as taxed by the taxing officer, wherein there was no challenge are sustained as taxed;

The Ruling of A.K. Ndung’u dated 30th July 2014 on taxation and Certificate of Taxation dated 8th September 2014 by F. Wangila, Deputy Registrar for 5,573, 682. 33 are accordingly varied and set aside.  The taxing officer is hereby directed to tabulate and  recalculate the advocate’s bill of costs dated  12th September,2011 and taxed on 30th July, 2014 and issue a fresh Certificate  of Taxation in accordance with  the orders herein.

Each party to bear their own costs of this reference as each of the parties has equally succeeded in their quest.

Dated, Signed and delivered atNAIROBI this 27th day of May 2015

R.E ABURILI

JUDGE

27/5/2015

Ruling read and pronounced in open court as scheduled

In the presence of Mr Muthee advocate holding brief for Miss Kanini for the Advocate/Applicant/Respondent.

No appearance for the Respondent/ Client/Applicant

Court Assistant: Virginia Kavata.

R.E ABURILI

JUDGE