Mukuna & 4 others v Wairia & 6 others [2022] KEELC 3473 (KLR)

Mukuna & 4 others v Wairia & 6 others (Environment & Land Case 81 of 1999) [2022] KEELC 3473 (KLR) (28 July 2022) (Ruling)

Neutral citation: [2022] KEELC 3473 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 81 of 1999

LC Komingoi, J

July 28, 2022

Between

Johnson Mana Mukuna

1st Plaintiff

Erastus Marenye Mukuna

2nd Plaintiff

Wilson Mbogo Mukuna

3rd Plaintiff

Wilsonwairia Mukuna

4th Plaintiff

John Mukuna Wairia

5th Plaintiff

and

Mathu Wairia

1st Defendant

Joseph D Kimura

2nd Defendant

Mwangi Elijah

3rd Defendant

Julius Gacau Kanyiri

4th Defendant

Samuel Mugo Mwangi

5th Defendant

Peter Karanja B Chege

6th Defendant

John Njoroge Nguchita

7th Defendant

Ruling

1. This is the Plaintiffs’ Chamber summons application dated 2nd February 2022.

2. It is brought under Rule 11 (2) of the Advocates Remuneration Order, Section 3A of the Civil Procedure Rules and all other enabling provisions of the law. The Plaintiffs seek orders;a.Spent.b.Spent.c.That the decision of the learned Taxing officer to allow and tax items 1 and 2 of the Bill of costs by the 2nd to 7th Respondents dated 28th April 2021 and any consequential orders/certificates arising therein be set aside/vacated.d.That costs of the application be paid by the 2nd to the 7th Respondents.

3. The application is supported by six grounds that are set out on the face of the Chamber Summons. It was also supported by the affidavit sworn on 22nd February 2022 by Mr. James Kamande Mwaura Gichahi who has conduct of this case on behalf of Plaintiffs.

4. Counsel deponed that judgment was delivered in this case together with costs of the suit in favour of the Defendants. He further deponed that since the inception of the case, all the Defendants were represented by one Advocate at any given time until the last hearing date when an additional Advocate came on record by way of a Notice of Change of Advocates to represent the 2nd to 7th Defendants and the initial Advocate was retained to represent only the 1st Defendant.

5. He also deponed that pursuant to the judgement in this matter, the initial Advocate representing the 1st Defendant filed a bill of costs dated 13th April 2021 whereas the new Advocate filed another bill of costs dated 28th April 2021 in respect of the 2nd -7th Defendants.

6. He deponed that he is of the view that the Defendants despite having two Advocates on record were not entitled to file two separate bills of costs particularly on the instruction fees and getting up fees because doing so amounts to double charging of the Plaintiffs which is contrary to the provisions of Rule 62 of the Advocates Remuneration order. He added that he raised a preliminary objection to the filing of two separate bills of costs but the learned taxing officer dismissed it and allowed the two separate bills where she applied the provisions of Rule 62 A (1) of the Advocates Remuneration Order thus contravening provisions of Rules 62 and 62 A (2) of the said Order.

7. The application is opposed. There is a replying affidavit sworn by Raphael N. Gachoka, advocate of the 1st Defendant, sworn on the 17th March 2022.

8. He deponed that Mwaniki Gachoka & Company Advocates represented the 1st Defendant till the final determination and pursuant to Rule 62 A of the Advocates Remuneration Order, they are entitled to draw the final Bill of Costs. She further deponed that the getting up fees for the 1st Defendant is based on the 1st Defendant’s instruction fee and is therefore rightfully taxed.

9. On the 24th March 2022 this court with the consent of the parties directed that the Chamber Summons be canvassed by way of written submissions

The Plaintiff’s submissions 10. They are dated 20th April 2022. Counsel submitted that the Learned Taxing Officer erred in relying on Rule 62A (1) of the Advocates Remuneration Order which envisages a situation where there is successive change of Advocates where the previous one ceases to act and the new one takes over until the last Advocate who will be finally on record for the party who has been awarded costs who will then draw a bill of costs. He further submitted that Rule 62 A (1) was inapplicable since the Notice of Change in this case introduced a second Advocate into the case where at the same time the former one was still in the case thereby having two Advocates on the same case at the same time.

11. It was his submission that by allowing the two Advocates finally on record each to charge his own bill, the Taxing Officer doubled the charges contrary to Rule 62 A(2) of the Advocates Remuneration Order. He added that the learned Taxing Officer also contravened Rule 62 of the Remuneration Order. He relied on the case ofDesai Sarvia & Pallan Advocates v Tausi Assurance Company Limited[2015]eKLR as well as the case of Nyamogo v Nyamogo Advocates v Kenya Bus Services& Another [2006] eKLR.

The 1st Defendant’s/Respondent’s submissions 12. They are dated 17th May 2022. Counsel for the 1st Respondent addressed the following issues:-a.Whether there are sufficient grounds for interfering with the taxing officer’s ruling dated 20th January 2022. b.Whether the decision of the taxing officer should be stayed/vacated.

13. It was counsel’s submission that the court can only interfere with the taxing master’s decision where the taxing master erred in principle and if the erring is on quantum, the court should only interfere with the calculation in exceptional circumstances. He further submitted that there are no exceptional circumstances which were brought forth by the Plaintiffs. He relied on the case of Lubellah & Associates Advocates v N.K Brothers Limited [2014] eKLR and the case ofPremcahnd Raichand Ltd & Another v Quarry Services of East Africa Limited and another[1972] E.A.

14. Counsel for the 1st Defendant/Respondent also submitted that the Plaintiffs/Applicants have not demonstrated reasons for staying or vacating the decision of the Taxing Officer. He added that some of the relevant factors to be considered before a decision of the taxing master is stayed include; the nature and importance of the matter, the amount of value of the specific subject matter involved, the interest of the parties, the general conduct of the proceedings and any direction by the trial judge.

15. I have considered the chamber summons and the affidavit in support. I have also considered the response thereto, the written submissions and the authorities cited. The issue for determination is Whether the Plaintiffs/Applicants have established grounds to set aside the Learned Taxing Master’s decision of 20th January 2022.

16. The Plaintiffs brought this reference in objection to the Taxing Master’s Ruling of 20th February 2022 in respect of items 1 and 2 of the 2nd -7th Defendants Bill of Costs dated 28th April 2021. They argued that all the seven Defendants were represented by M/S Mwaniki Gachoka & Co. Advocates until the last day of hearing of the case when M/S Kwengu & Company Advocates were retained to represent the 2nd – 7th Defendants.

17. In the ruling of the Learned Taxing Officer of 20th January 2022, the 1st Defendant’s Party and party Bill of costs was taxed at Ksh.1,777,490/= while the 2nd to 7th Defendant’s Bill of costs was taxed at Ksh.1,607,150/=.

18. The Plaintiffs contended that in view of the fact that the 2nd -7th Defendants’ Advocate herein only came on record at the eleventh hour when the matter was almost complete, item 1 and 2 should not have been taxed in the bill of costs dated 28th April 2021 as it amounts to double taxation. They also contended that the taxing officer was in contravention of rule 62 and 62 A(2) of the Advocates remuneration order.

19. This court is guided by the decision in Kipkorir, Tito & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR where the court held; “On reference to a Judge from the taxation by the Taxing Officer, the Judge will not normally interfere with the exercise of discretion by the Taxing Officer unless the Taxing Officer, erred in principle in assessing the costs.”

20. Rule 62 A. of the Advocates Remuneration order provides:-1. Where there has been a change of advocates or more than one change of advocates, the advocate finally on the record shall draw a single bill for the whole of the matter in respect of which costs have been awarded.

2. On taxing the bill the taxing officer shall take into account the following principles that the bill shall not be larger than if a single advocate had been employed and that the party taxing the bill shall not obtain indemnity for costs which he has not paid.

3. The bill shall be accompanied by a certificate setting out the dates during which all advocates acted, together with all agreements for remuneration made with them, all sums paid to them for costs and whether those sums were paid in full settlement.

21. The Taxing officer based her decision on Rule 62A (1) of the Advocates Remuneration order. In Machira & Co. Advocates v Arthur K. Magugu & another[2012] eKLR, the court of Appeal held as follows, “…. Paragraph 62 A (1) upon which the judge based his decision states that: “Where there has been a change of Advocates or more than one change of advocates, the Advocate finally on record shall draw a single bill for the whole of the matter in respect of which costs have been awarded.” Save for interlocutory applications, costs are normally not awarded until the determination of the matter. That being the case, the above provision clearly refers to party and party costs and not to advocate/client costs. As Justice Ringera observed, the objective behind the provision is to shield litigants from being “burdened with costs incurred as a result of change of advocates by the adverse party.” The Taxing officer therefore correctly applied Rule 62A(1)

22. On being instructed at whatever stage of proceedings, an Advocate is entitled to instruction fees being Advocates client fees. However, item 1 and 2 of the Bill of Costs dated 28th April 2022 being, instruction fees of party and party costs, only one instruction fee can be recovered by the 1st to 7th Defendants who changed Advocates. I’m guided by the decision in Kenya Tea Development Agency Ltd V J. M. Njenga & Co. Advocates [2008] eKLR the court stated, “…. But having said that, a new Advocate coming onto a matter somewhere in the middle of the proceedings in the High Court will be entitled to the full instruction fee prescribed in Part A of Schedule VI of the Order subject to the taxing officer’s discretion to increase or (unless otherwise provided) reduce it, and as augmented by the formula in Part B (increase by one-half). A client who changes advocates in the High Court therefore can expect to pay the full instruction fee as many times as he pleases to change advocates, notwithstanding that he can recover only one instruction fee in a party and party taxation, unless there is a judge’s certificate for more than one counsel.”

23. From the foregoing, I find that the Taxing Master erred in principle by allowing two instruction fees of the Bill of Costs from the two firms representing the 1st Defendant and the 2nd -7th Defendants for failing to appreciate appreciation that the 2nd -7th Defendants could only recover one instruction fee. Further, the 2nd to 7th Defendants’ bill of costs contravenes Rule 62A (2) of the Advocates Remuneration Order. The consequence is that the taxation led to a manifestly excessive bill that justifies the setting aside of the Taxing Master’s ruling of 20th January 2022. Mr. Kwengu came on record for the 2nd – 7th Defendants on 16th October 2019. He only took in the evidence of PW4, DW1 and DW2.

24. I agree with the Plaintiffs/Applicants’ submissions that the seven Defendants were from inception represented by one advocate and they filed a joint statement of defence and all other pleadings. I find merit in this application and I grant orders in terms of prayer no 3 of the Chamber Summons. I make no orders as to costs.It is so ordered.

DATED, SIGNED AND DELIVERED NAIROBI THIS 28TH DAY OF JULY 2022. ..........................L. KOMINGOIJUDGEIn the presence of:-Mr. Gichachi advocate for the PlaintiffsMs Nkatha holding brief for Mr. Gachoka for the 1st DefendantNo appearance for 2nd -7th DefendantsSteve - Court Assistant