M/S C.K. Ungu & Company Associates v Mwaniki [2022] KEHC 11310 (KLR)

M/S C.K. Ungu & Company Associates v Mwaniki (Miscellaneous Civil Case E046 of 2021) [2022] KEHC 11310 (KLR) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11310 (KLR)

Republic of Kenya

In the High Court at Meru

Miscellaneous Civil Case E046 of 2021

TW Cherere, J

May 5, 2022

IN THE MATTER OF THE ADVOCATES ACT AND IN THE MATTER OF TAXATION OF COSTS BETWEEN PARTY AND PARTY

Between

M/S C.K. Ungu & Company Associates

Advocate

and

Ann Nkirote Mwaniki

Client

Ruling

1. This is a reference from a decision made by the taxing master delivered on 14. 10 2021 on the applicant’s advocate/client bill of costs dated 05. 08. 2021 filed on 06. 08. 2021.

2. By achamber summons dated November 11, 2021brought under the provisions of rule 11 of the Advocates (Remuneration) Order, 2014 and schedule 7 of the Advocates (Remuneration) (Amendment)Order, 2014, the Applicant seeks orders that:1. The decision of the Taxing Master dated 14. 10 2021 be reviewed on items 4,5,7,8,9,10,12,13,14,15,16,17,18,19,23,24,27,28,30,32,35,37,39,40,41,43,44,45,46,51,52,63 and 642. Costs be provided for

3. The motion is premised on the grounds on the body of the application and the supporting affidavit sworn by Christine Kawira Ungu, Advocate on 11. 11. 2021 and annexures thereto.

4. Application is opposed on the basis of a replying affidavit sworn by the respondent on December 15, 2021in which she avers that the decision by the taxing master was well founded.

Analysis and Determination 5. I have carefully considered the reference in the light of the supporting affidavit, he replying affidavit, and written submissions filed on behalf of both parties.

6. A Judge of the High Court cannot interfere with the taxing officer’s exercise of discretion unless it is shown that either the decision was based on an error of principle, or the fee awarded was manifestly excessive as to justify an inference that it was based on an error of principle. (See Nyangito & Co. Advocates v Doinyo Lessos Creameries Ltd [2014] eKLR.).

7. Paragraph 22(1) of the Advocates Remuneration Orderprovides as follows: -“In all cases in which any other schedule applies, an advocate may, before or contemporaneously with rendering a bill of costs drawn as between advocate and client, signify to the client his election that, instead of charging under the Schedule, his remuneration shall be according to the scale applicable under the other Schedule.”

8. I shall proceed to determine the reference on the basis of the disputed items as hereunder.Items 4, 7, 8, 9,10 ,12 ,13 ,14, 15, 16, 17, 18, 19, 23, 24, 27, 28, 30, 32, 35, 37, 39, 40, 41, 43,44, 45,46, 51 and 52

9. Thebill of costs speaks for itself clearly that the applicant did not make an election to apply schedule v and the taxing officer was wholly aware that the bill of costs was to be taxed underschedule VII.

10. Schedule VII has no provision for all the items that are listed herein above and the Taxing master correctly taxed them off.

Items 5 11. The ultimate decretal sum awarded on appeal was Kshs. 863,030/- and as rightly found by the Taxiing Master, that was the sum the basis on which Instructions fees ought to be taxed. Whereas the sum due under the schedule is Kshs 65,000, the Taxing Master allowed Kshs 90,000 which I confirm.

Items 63 and 64 12. The order taxing off these items that were not supported by vouchers was well founded

13. The upshot of this is that chamber summons dated November 11, 2021 is found to have no merit and it is dismissed with costs to theclient/respondent.

DATED AT MERU THIS 05TH DAY OF MAY 2022T. W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Advocate/Applicant - N/A for C.K.Ungu & Company AssociatesFor Client/ Respondent - Mr. Njunja for Nkunja & Co. Advocates