Masimba v Singh and Another (Civil Case No. 587 of 1949) [1950] EACA 38 (1 January 1950)

## ORIGINAL CIVIL

### Before SIR BARCLAY NIHILL, C. J.

#### MAKIMA MASIMBA, (*Plaintiff*)

# (1) KISHEN SINGH, (2) DES RAJ SHARMA (Defendants) Civil Case No. 587 of 1949

## Taxation—Bill of Costs—Deputy Registrar—Interference by Supreme Court— Advocates' Remuneration and Taxation of Costs Rules, and rule 5—Jurisdic-. tion of Deputy Registrar.

Appeal against Deputy Registrar's taxation of Bill of Costs.

For appellant it was contended that, under the item "Instructions to file Action", the Deputy Registrar had allowed an amount so patently excessive that he must have exercised his discretion unjudicially, objection being also taken to various other items. It was further contended that the Deputy Registrar was not legally competent to tax the bill, under the Advocates' Remuneration and Taxation of Costs Rules.

Held $(9-9-50)$ .—(i) That a judge of the Supreme Court is not a fit tribunal to decide questions of quantum on the taxation of costs, and the Court will not interfere in such matters save in exceptional cases.

(ii) That under Advocates' Remuneration and Taxation of Costs Rules, rule 5, the Deputy Registrar has jurisdiction to act as Taxing Master, and it is not necessary for him to be appointed by the Chief Justice in the absence of the Registrar.

Taxation varied.

$\cdot$ Cases referred to: S. K. Patel v. Jetha & Mulji, 1944/45, XXI K. L. R. 27; Hasham Kara v. Karmali, 1946/47, XXII K. L. R. 1; Zala & Zala, 1946/47 XXII K. L. R. 6. Kalyanjee v. M. M. Stores (Civil Appeal No. 24/47) XXIV K. L. R. Pt. I, 47.

#### Akram for the plaintiff.

Bhandari for the defendant.

ORDER.—This matter comes to me in the form of an appeal against the Registrar's taxation of a bill of costs. The main item of complaint is that in allowing Sh. 2,000 under "Instruction to file action" the Registrar has allowed a figure so patently extravagant that he must have exercised his discretion unjudicially. The item in question appeared in the plaintiff's bill of costs at the figure Sh. 5,000 which I have no hesitation in regarding as an extremely high figure. taking the nature of this action into account. The Registrar did, however, tax off Sh. 3,000 of this amount. Did he act on some wrong principle in not taking off more? It has been said over and over again that a Judge of the High or Supreme. Court is not a fit tribunal to decide questions of quantum on the taxation of costs and that the Court will not interfere in such matters save in the exceptional case. (See the following Kenya cases in which the English decisions are referred to: S. K. Patel v. Jetha. & Mulji, 1944-45, XXI K. L. R. 27; Hasham Kara v. Karmali, 1946-7 XXII K. L. R. 1; Zala and Zala 1946-7 XXII K. L. R. 6 and Kalyanjee v. M. M. Stores (Civil Appeal No. 24/47) XXIV K. L. R. Pt. I, 47. I am of opinion that if I was to accede to Mr. Bhandari's entreaties in this case I should open the door to a host of appeals where disgruntled litigants would seek to persuade a Judge to be kinder to them than the Registrar. There is nothing on the face of it from which I can conclude that this case is so exceptional that the Registrar must have acted on a wrong principle. This was not a suit for a liquidated amount as was the case in the two cases reported in Volume XXII of the Kenya Law Reports where the Court granted relief. It was a suit for possession of a dwelling-house, and although, as the case was ultimately fought, no issues of

great complexity seem to have arisen, it was a case that on the face of it might well have involved questions of law, such as the status of the parties and the application and effect of Rent Restriction legislation. Taking all this into account I am not prepared to assume that in fixing the instruction fee at Sh. 2,000 the Registrar must have acted on some wrong principle as to entitle me to remit the matter back to him.

As regards items Nos. 15, 16, 17, 22 and 23 to which objection has also been taken, here Mr. Bhandari is in my opinion on better ground, and having read the proceedings I agree with him that correspondence with the Rent Control Board was not essential to the plaintiff's case against the defendants and the costs incurred should have been regarded by the Registrar as costs between solicitor and client. I therefore remit the bill to the Registrar with instructions to disallow these items.

I have to refer to one other point. Mr. Bhandari has attempted to argue that the officer who taxed this bill had not the legal competence to do so. The taxing officer in this case was the Deputy Registrar of the Supreme Court at Nairobi, but it is contended that this is not an office contemplated by rule 5 of the Advocates' Remuneration and Taxation of Costs Rules (Part XIII Rules of Court at p. 96 of Vol. 1 Laws of Kenya Subsidiary Legislation). According to Mr. Bhandari therefore Mr. Ross, the taxing master in this case, was only entitled to tax (a) in the absence of the Registrar and $(b)$ on appointment by me. In my opinion the Rule is clear enough; taxation may be undertaken $(a)$ by the Registrar, $(b)$ by a District Registrar, $(c)$ by a Deputy Registrar and in the absence of either the Registrar, or a District Registrar, or a Deputy Registrar then by such other officer as may be appointed by the Chief Justice. As Mr. Ross is a Deputy Registrar he therefore has the jurisdiction to undertake taxation.

Since Mr. Bhandari has succeeded on one issue in his application to remit back each party will bear its own costs.