Makhecha & Gitonga Advocates v Standard Group PLC [2023] KEHC 24257 (KLR)

Makhecha & Gitonga Advocates v Standard Group PLC (Civil Miscellaneous Application 794 of 2019) [2023] KEHC 24257 (KLR) (Civ) (27 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24257 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Miscellaneous Application 794 of 2019

AN Ongeri, J

October 27, 2023

Between

Makhecha & Gitonga Advocates

Applicant

and

The Standard Group PLC

Respondent

Ruling

1. The advocate filed a reference against the ruling on the bill of costs dated 10/12/2019 on the following grounds;(1)The Bill was taxed at Kes. 66,218. 20/- on 26th August 2021. (2)The Taxing Master erred in law and misdirected herself in finding that the prayers in the Plaint were non-monetary and that it was not possible to ascertain the value of the subject matter.(3)The Taxing Master erred in principle while taxing the Bill of Costs and in particulara.Failing to apply the correct principles.b.Taxing off getting-up fees.c.Awarding costs that are manifestly low as to cause an injustice to the Applicant.(4)It is in the interest of justice that this reference is allowed.

2. The Taxing Master taxed the bill of costs at kshs.66,218. 20 (sixty six thousand, two hundred and eighteen shillings and twenty cents).

3. The advocate submitted that the bill of costs is based on an error of law.

4. The advocate filed submissions as follows; the applicant submitted that the Taxing Master erred in principle and misdirected herself in finding that prayers (a) and (c) were non-monetary and that it was not possible to ascertain the value of the subject matter from the prayers. Despite it being a defamation case, the value of the subject matter being the quantum of damages awarded or awardable if the Plaintiff is successful could be assessed. Schedule 6 paragraph I(b) of the Advocates (Remuneration) (Amendment) Order 2014 should have been used to guide the Taxing Master on the amount to grant as instruction fees. In support cited Kipkorir, Tito & Kiara Advocates V Deposit Protection Fund Board [2005] eKLR wher the Court of Appeal held as follows: -“We have no doubt that if the taxing officer fails to apply the formula for assessing instructions fees or costs specified in schedule VI or fails to give due consideration to all relevant circumstances of the case particularly the matters specified in proviso (l) of schedule VIA, (I) that would be an error in principle.”

5. The sole issue for determination is whether the bill was taxed to scale.

6. I find that ksh.75,000 awarded as instruction fee is the basic. I award ksh.300,000 in respect of instruction fees.

7. I find that the rest of the items are taxed to scale and I find no reason to interferewith the same.

8. The subtotal figure is increasedby 225 = 331,210Add ½ = 165,605Add 16% VAT = 52,993. 60Add disbursement 5,525Subtotal 555,333. 60Less deposit 124,112. 20Sum payable 431,221. 40

9. Judgment be and is hereby entered in favour of the advocate against the respondent in the sum of ksh.431,221 plus interest at 14% from the date of the certificate of taxation until payment in full.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 27TH DAY OF OCTOBER, 2023. …………….A. N. ONGERIJUDGEIn the presence of:……………………………………... for the Applicant……………………………………… for the Respondent