Mugambi v H&M Cooperative Savings & Credit Society Limited & 4 others [2023] KECPT 1093 (KLR)

Mugambi v H&M Cooperative Savings & Credit Society Limited & 4 others (Tribunal Case 287 (089) of 2021) [2023] KECPT 1093 (KLR) (Civ) (14 December 2023) (Ruling)

Neutral citation: [2023] KECPT 1093 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 287 (089) of 2021

BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

December 14, 2023

Between

Hon James Gichuki Mugambi

Claimant

and

H&M Cooperative Savings & Credit Society Limited

1st Respondent

Gray Mwamunye

2nd Respondent

Nancy Mwamkuu

3rd Respondent

Mary Thuku

4th Respondent

Lucy Muchiri

5th Respondent

Ruling

1. The matter for determination is a Bill of Costs dated 14/4/2023. The Respondents (1,2,3 & 5th) filed their Written Submissions dated 17/7/2023. The Claimant filed their Written Submissions dated 14/8/2023. We have considered the Written Submissions of the parties and accordingly tax the Bill of Costs under Schedule II Advocates Remuneration Amendment Order 2014 as follows:

2. Instruction fees;The Claimant from prayer 1 this item is to be taxed at Kshs. 6,215,132. 39/=. The Respondents have opposed this figure and proposed a sum of Kshs. 740,603. 15/=. The parties have cited authorities to support their proposals and we make our findings as follows:

3. In Jureth Limited v Kyano & Advocates [2002]eKLR it was held that the value of the subject matter of a suit for the purposes of taxation of the Bill of Costs ought to be determined from the Pleadings, Judgment or settlement if the same is not ascertainable. The Taxing Officer is entitled to use his discretion to assess such instruction fee as he considers just, taking into account, among other matters, the nature and importance of the cause of matter, the interest of the parties, the general conduct of the proceedings, any direction…. and all other relevant circumstances.

4. We note that the instruction fees seeks to have a reasonable compensation of the professional work done and should avoid unjust enrichment for any particular party or parties.

5. We have also considered the principles of Republic v Ministry of Agriculture and 2 others exparte Muchiri W’Njuguna and 6 others [2006] eKLR.

6. We note that the Claim filed was for a sum of Kshs. 125,247,471/=, and a cumulative figure was Kshs.1,665,791,364. 30/=. There was the prayer for disbursement of the dividends for 2021 and 2022 total Kshs. 224,346,395. 30/= where the principle sum is Kshs 2,625,132,387. 30/=.

7. We also mote that there was a Ruling for the release of the initial dividends for the year 2021 and the second one for the year 2023.

8. We note that there was also a Counter -claim which was sought by the Respondent for similar amounts.

9. We note Rule 2 and 3 and the nature, complexity value, urgency and importance of the Claim. The Claim was defended and there was a Counter-claim which was defended.

10. Essentially, we note that the matter was complex, the value was high and the matter was for urgency with several Application that needed expeditious disposal at interlocutory stage. It was a complex matter involving dividends of members which was also earning interest daily.

11. We therefore tax this item as follows:a.Instruction fees.i.Claim for dividends for a principal sum of Kshs. 1,665,791,364. 30/= where the Claimant was seeking the release of the money taxed Kshs. 2,855,791. 40/=.ii.On the issue of rectification of trust deeds was issue of its own as a case within a case for Kshs. 1,665,791,364. 30/= being shares (125,247,471 at Kshs 13. 30/= per share) taxed at Kshs. 2,855,791. 40 X 1/4 = Kshs. 713,947. 85/=.iii.Permanent Injunction for dividends of Kshs 125,247,471/= where the principle value is Kshs.1,665,791,364. 30/= we hereby find this should be a fraction of the fees for the subject matter Kshs.2,855,791. 40 X ¼ taxed at Kshs.713,947. 85/=.iv.Defending the counter Claim for Kshs. 734,994,628/= being share dividends paid from the year 2009 to 2019 taxed at Kshs. 1,924,994. 62/=.Total Kshs. 6,208,681. 72/= for Instruction Fees.b.Getting up fees, drawings and copies as per items 2, 3, 4, 6, 7, 8, 20, 11, 12, 13, 22, 23, 25, 26, 31, 34, 36, 37, 38, 43, 47, 48, 51 are hereby taxed off at NIL each.c.Items on service, items 5, 14, 24, 27, 39, 49 at Kshs. 1,400/= each 1,400 x 6 = Kshs.8,400/=This item is taxed at Kshs. 8,400/=d.Item on attendances for Kshs.500/= - 15, 16, 17, 18, 19, 20, 021, 28, 29, 30, 35, 40, 41, 42, 44, 45, 50, 52, 53, 54, 55 and 56 hence Kshs.500 x 22 = Kshs.11,000/=For Kshs.2,100/= - 46, 33 = Kshs.4,200/=For item 32 – Kshs.150,000/= Kakamega circuit for 2 advocates and 3 witnesses total of attendances Kshs.203,000/=.e.Disbursements taxed at Kshs 88,490/=We therefore find that the Bill of Costs dated 12/4/2023 is hereby taxed at Kshs. 6,508,571. 72/=

RULINGSIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF DECEMBER, 2023. Hon. Beatrice Kimemia Chairperson Signed 14. 12. 2023Hon. J. Mwatsama Deputy Chairperson Signed 14. 12. 2023Hon. Beatrice Sawe Member Signed 14. 12. 2023Hon. Fridah Lotuiya Member Signed 14. 12. 2023Hon. Philip Gichuki Member Signed 14. 12. 2023Hon. Michael Chesikaw Member Signed 14. 12. 2023Hon. Paul Aol Member Signed 14. 12. 2023Tribunal Clerk JonahMuchiri advocate holding brief for Gitonga Muriuki advocate for the Claimant.Mrs. Omutimba advocate holding brief for Mr. Kinyua Advocate for the 1st , 2nd and 5th Respondent.**Omutimba advocate- We pray for 30 days stay of executionMuchiri advocate – They can be granted 30 days.Tribunal order:Claimant to grant Respondent 30 days stay of execution.Hon. J. Mwatsama Deputy Chairperson Signed 14. 12. 2023