Mwadumbo & Co. Advocates v Joseph Maina Kimani t/a Arprim Consultants [2022] KEHC 9934 (KLR)

Mwadumbo & Co. Advocates v Joseph Maina Kimani t/a Arprim Consultants (Miscellaneous Application 201 of 2017) [2022] KEHC 9934 (KLR) (Admiralty) (7 June 2022) (Ruling)

Neutral citation: [2022] KEHC 9934 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Admiralty

Miscellaneous Application 201 of 2017

DO Chepkwony, J

June 7, 2022

Between

Mwadumbo & Co. Advocates

Applicant

and

Joseph Maina Kimani t/a Arprim Consultants

Respondent

Ruling

1. Before this Honourable Court is a Chamber Summons application dated 21st July, 2021 brought under Rule 11(2) of the Advocates Remuneration Order 2014, Sections 63 (e), 1A, 3, 3A, 89 & 94 all of the Civil Procedure Act seeking for the following orders; -1. That the decision of the Taxing Officer delivered on 12th July, 2021 as far as the same relates to taxation of Item one (1) of the Advocates/Client Bill of costs, the quantum awarded thereon and the reasoning with respect to the said award be and is hereby set aside.2. The Honourable Court be pleased to re-tax Item one (1) of the said Bill of costs.3. the alternative to prayer (2) above, the Honourable Court be pleased to remit the amended Bill of Costs dated 22nd April, 2021 for re-Taxation Of Item One (1) Before A Different Taxing officer with appropriate directions thereof.4. The costs of this application be provide for.

2. The application is supported by the grounds on its face and annexed affidavit of Morris M. Karigi sworn on even date. In the Supporting Affidavit, the applicant deposes as follows; -a.The amended Advocate/Client Bill of Costs dated 22nd April, 2021 was taxed on 12th July, 2021 at a colossal sum of Kshs.1,036,937/=.b.The Honourable Deputy Registrar erred both in fact and law by failing to take into account the fact that the Respondent was not sued as a Defendant in HCC No.564 of 2014. c.The Honourable Deputy Registrar erred both in fact and law by failing to take into account the fact that the earned Judge in HCC No.564 of 2014 did not mention any pleading and/or document allegedly filed by the Advocate.d.The Taxing officer erred in holding that the value of the subject matter was Kshs.22,986,667/= despite there being no Counterclaim by the Defendant against the Client in HCC No.564 of 2014. e.The Taxing Officer erred both in law and fact in arriving at and concluding that the amount Kshs.548,628/= was reasonable without setting out reasons thereof.f.The Taxing Officer did not exercise her discretion judiciously and abdicated her duties by holding that a sum of Kshs.548,628/= was reasonable as instructions fees.g.The Taxing Master’s decision in terms of item one (1) in the amended Bill of Costs dated 22nd April, 2021 is devoid of any basis in law and this Honourable Court has jurisdiction to set aside the same and or re-assess the costs payable.h.Upon perusal of the court record, I note that no response was filed to the Chamber Summons dated 21st July, 2021 however, the Respondent/Objector filed written submission to the application.

3. This Honourable Court gave directions regarding to filing of written submissions on 23rd February, 2022 which both parties complied with. The Respondent’s/Objector written submission are dated 4th February, 2022 while the Advocate/Respondent’s submissions are dated 8th April 2022.

Analysis and Determination 4. I have considered the application, the grounds which it is premised and the written submission filed by the parties in support and opposition thereof. The only issue for determination by this court is whether the applicant has made out a case to warrant this court interfere with the Taxing officer’s decision.

5. The governing principle that guides courts in applications of this nature were well outlined by the Court of Appeal in the case of Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board NRB CA Civil Appeal No. 220 of 2004 [2005] eKLR, where the Court stated as follows;-“On a 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”.In Arthur v Nyeri Electricity Undertaking [1961] EA 497, the predecessor of this Court said at page 492 paragraph I:“where there has been an error in principle the Court will interfere; but questions solely of quantum are regarded as matters with which the Taxing Officers are particularly fitted to deal and the Court will interfere only in exceptional cases”.

6. The major contention in the instant application as stated by the Applicant concerns the award of Items one (1) of the Bill of Costs on (instruction fees) which the Applicant contends is too high and needs to be re-assessed by this Honourable Court. The Respondent/Objector submitted that the Taxing Officer relied on wrong principles in determining the value of the subject matter which the advocate ought to base the instruction fees upon.

7. The suit upon which the Applicant has filed this Reference was filed in 2014 and therefore the applicable Advocates Remuneration Order to base the instruction fees is the 2014. The instruction fees are calculated from the value of the subject matter in question. The value of the subject matter for the purposes of taxation of a bill of costs ought to be determined from the pleadings or Judgment.

8. The Taxing Officer is entitled to use his/her discretion to assess such instruction fees as in his/ her consideration, taking into account, amongst other matters the nature and importance of the cause or the matter; the interest of the parties, the general conduct of the proceedings, any directions by the trial Judge and all other relevant circumstances.

9. In this matter, the value of the subject matter in question was pegged at Kshs.23,241,867/= as shown in the pleadings. The value of the subject matter for purposes of taxation is therefore Kshs.23,241,867/= and pursuant to Paragraph 1(b) of Schedule 6 of the Advocates Remuneration Order, 2014 the instruction fees work as follows;1st Kshs.1,000,000 - 120,0002nd Kshs.19,000,000x 2/100 - 380,000Balance Kshs.3,241,867x1. 5/100 - 48,628Total - 548,628. 005Item No. 1 on instruction fees is therefore taxed at Kshs.548,628. 005

10. It is the finding of this Honourable Court that the decision by the Taxing Master was within the law in terms of instruction fees.

11. For the reasons stated above, the application dated the 21st July, 2021 is not merited and is hereby dismissed with no orders as to costs.Orders accordingly.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 7TH DAY OF JUNE, 2022. D. O. CHEPKWONYJUDGEIn the presence of:M/S Mwadumbo counsel for AdvocateMr. Njage counsel for client