Nyamogo & Nyamogo Advocates v Pan Africa Insurance Company Limited & Apa Insurance Company Limited [2015] KEHC 113 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISCELLANEOUS CIVIL APPLICATION NO.1121 OF 2013

NYAMOGO & NYAMOGO ADVOCATES …………………………………….APPLICANT

VERSUS

PAN AFRICA INSURANCE COMPANY LIMITED ………1ST RESPONDENT

APA INSURANCE COMPANY LIMITED…………………..2ND RESPONDENT

RULING

The applicant herein, Nyamogo & Nyamogo Advocates represented by Mr Nyamogo Advocate was the plaintiff in Milimani CM CC NO.  12625 of 2006 wherein he had sued he respondents herein Pan Africa Insurance Company Limited and APA Insurance Company Limited for recovery of taxed costs.

The said suit, from the scanty record  contained herein, was compromised  by the parties  before the hearing, with the  respondents  paying to the plaintiff kshs  69,975. 75 cts, following  judgment  on admission  recorded  on 24th September  2012, upon which the  plaintiff  therein was also allegedly awarded costs  of that suit  and interest  to be assessed  or taxed.

The costs in the said suit were never agreed upon.  Consequently the plaintiff, who  is the applicant herein  filed this  miscellaneous cause, seeking to have party and party  costs as  drawn vide party and party bill of costs  dated 26th  November, 2013  and filed in court on the  same day taxed by the Deputy Registrar  of this court.

The mater came up before Honourable  A.K. Ndungu Deputy Registrar  on 22nd July 2014  and Mr  Maruti advocate  for the respondent  raised  the issue of whether  the  party and party costs  could not  be taxed  in the same  suit wherein the costs were awarded  instead  of  filing a separate  cause herein.  In Mr Maruti’s view, only advocate/client bill of costs could be filed in the High Court for taxation.

Mr Nyamogo advocate/applicant on the  other hand  contended that both parties  were in Nairobi that is  why  the bill herein  was filed in Nairobi  High Court and that  not all costs  were assessed  at the lower court.  Mr Nyamogo was then ordered to serve the bill upon the respondents and by consent, a hearing was set for 7th August 2014.

On 7th August 2014, the matter  came before  Honourable F.R. Wangila Deputy Registrar and Mr Nyamogo  once again clarified that the  bill before  court was party and party costs  between an advocate  and client  brought under paragraph 15(7) of the Advocates Remuneration Order.  He asked  the Deputy Registrar to tax  the bill as drawn since  it was drawn  to scale.

In response , Mr Maruti submitted that  they disputed  a number of items  in the bill and  were not sure  if the  2nd  respondent  had been served.  He urged  that they dispose of the issues by  way of written submissions.

Mr Nyamogo  opposed  the response  by  Mr Maruti arguing  that there was  no order  made on 22nd July 2014  for service  of the bill upon   anybody  and that  as   Mr Maruti  was not  holding brief for  Mereka  & Company Advocates for the  2nd respondent, he had  no  authority to speak on their behalf .  He also opposed  the suggestion that the  parties  file written submissions  contending  that Article 159 of the Constitution  was in favour of expeditious  disposal  of matters  and that as far as  he was  concerned, he had already submitted  on  taxation  of the bill hence the issue of  filing  of written  submissions  was overtaken  by events.

In a rejoinder, Mr Maruti submitted that he needed  to respond to the bills  by way of written submissions since  he had only been served on  28th July 2014.

The  Deputy Registrar  ordered  that the  1st respondent  files  written submissions  to object  to  the itemized  bill within   7 days  from 7th August  2014 and  the applicant  was also given  7 days from  date of service  to respond  thereto. The matter was slated for 8th August  2014 to confirm  compliance  and for taking of a date  for ruling.  The matter  was later fixed for  taxation  on 17th September  2014  when nothing transpired on  18th August  2014.

On 17th September 2014  Mr Nyamogo complained  that the 2nd respondent  who had  not been participating in the matter  had nonetheless sneaked in their  written  submissions.  He urged the court  to expunge their submissions  from the  record.  However, Mr Thuo  advocate  for the 2nd respondent  maintained  that it  was his client’s right to be heard.

Mr Anyona for  the 1st  respondent  also concurred  with Mr Thuo’s submission that all parties  should be given  an opportunity  to be heard so that  the court  could  look at the issues  involved on merit.

The Deputy Registrar ruled that it was  fair when all parties participate  in the  proceedings  so that   a case  could be  heard  on merits  by the parties availing  all the evidence  and information before  the court  and that it was not   fair  to lock out a party  who had  shown interest  in the case.  She therefore  allowed the 2nd respondent’s submissions  already filed by them as being properly  on record and granted  the applicant leave to 7 days  to respond to the said submissions.  She  also condemned  the respondent  to pay to the  applicant  costs  of kshs  10,000 to be included  as part of  the taxed costs.

After  considering  all the  submissions  filed  by the parties  for and against  the filed party and party  costs, the  Deputy  Registrar, by her ruling  dated 25th day of  February  2015  found that the applicant could  not file  a party and party bill  of costs  on a case which had been  determined in the lower court  to be determined by the Deputy   Registrar  of the High Court.  She also found  that party and party costs  could only be taxed   in the same  case file  and that  only advocate/client  bill  of costs could be  taxed by the  Deputy Registrar  of the High Court.  She  therefore  struck out the bill of costs as filed herein with no orders as to costs.  She also granted the applicant  leave to pursue his costs if any  in the right  forum.

It is that  ruling that prompted  the  applicant herein  to file the  chamber summons  dated 8th April 2015 filed on  the same day under paragraph 11(1) and (2)   of the Advocates  Remuneration Order  by way of reference  contending that:

The Learned taxing officers misdirected  herself with respect to her jurisdiction  in taxing bills of costs.

The learned taxing officer abused  her jurisdiction when she purported  to review, sit on appeal over an earlier decision  of the court  of equal jurisdiction.

The learned  taxing officer  acted without  jurisdiction  when she  purported  to make  final orders  in a matter upon which  she  had found herself without jurisdiction.

The learned taxing officer  having  determined  that her court was not  the right forum had no jurisdiction to make  any other/further  orders  in the matter.

The learned taxing officer erred in purporting to strike out the  bill of costs yet in the same  breath purporting to  grant leave to pursue the same  costs  in the right forum.

The learned taxing officer  fell into error by granting  orders which were neither  sought nor urges before  her while   failing  and or declining  to tax  the bill of  costs.

In the applicant’s view, the taxing officer  had no jurisdiction   nor discretion  to disturb  (sic) and urged the  court to remit  the bill to the  taxing officer  to retax   the same  according  to the law, and award  him costs of the reference.

Mr Nyamogo  also swore  a supporting  affidavit  reiterating  the grounds above as reproduced, challenging the jurisdiction of the taxing officer to refuse  to tax the bill of costs  on the ground  that she had no jurisdiction to tax party and party  bill of costs  for a matter which   was pending before the magistrate’s courts.  He maintained that the ruling/order  by the taxation  officer was an illegality and flew in the face of  the Advocates Remuneration Order  and was incurably  defective  for non compliance  with the law.  He  also complained  that the taxing officer had  refused to provide reasons for her decision.  He annexed  copies of letters  asking for  the reasons.

According to Mr Nyamogo, what the taxing  officer was expected to do, was to simply  tax the bill as  presented and not  to down her  tools  the way she  did and that  she should not  have  made further orders hence her decision  had no basis.

The chamber summons referred  to above was  opposed by the 2nd respondent who  filed grounds of  opposition dated 4th June 2015 contending that:

The ruling  by the taxing  master was  well grounded  in law and  the and the  application  herein lacks  merit and  should be  dismissed  with costs.

That the taxing master  acted within  the law when she  gave directions  to the parties on the manner  in which the  taxation was to proceed.

The taxing master  properly ruled that  she did not  have jurisdiction to  entertain  matters filed or arising from  the Chief Magistrate’s Court in a  party and party  bill of costs.

The taxing master  struck out the bill  of costs which automatically gives the aggrieved  party a right to have  their costs assessed  in the right forum.

Paragraph 13A  of the Advocates Remuneration  Order denotes  power to the  taxing  master  to grant any order she deems   fit and necessary  for the  determination of any matter.

The  application is an abuse of the  court process and should be struck out with costs.

The parties appeared before me  on 26th June 2015 and argued the application orally.  Mr Nyamogo Ochieng  advocate appeared  in person whereas  Miss Abok  advocate  appeared for the  1st respondent  and also held brief for Mr Maruti for  the 2nd respondent.

Mr Nyamogo submitted that there  were no reasons for the decision  made by the taxing officer  despite  the fact that he had  written to her seeking for such reasons.

Further, that the taxing officer had  jurisdiction to tax the party and  party bill of costs in accordance  with paragraph 10  of the Advocates  Remuneration  Order.  In addition, that  she had  the jurisdiction to tax party and party bills  of costs as well as party  and party bills  of costs  from a  magistrate’s  court.

Mr Nyamogo maintained that the  taxing officer misdirected  herself as  to her jurisdiction and also  abused  her jurisdiction to the  extent  that the  issue of proper  court had  been determined by Honourable  Ndungu Deputy Registrar before  the bill was  set down  for taxation on 7th August  2014.  In his view, the only matter  that could be placed before a taxing  officer  is to tax the bill of costs and not to decline on the basis  that she had no jurisdiction thereby erroneously dismissing  the bill of costs.

In his view, if she  had no  jurisdiction then the taxing officer could not dismiss the bill of costs  or even grant  leave for the matter to be taken up in the  right forum.  Mr Nyamogo urged the  court  to allow the reference with  costs.

In opposing  the application, Miss Abok  relied  on the grounds of opposition and  submitted that paragraph 13A of the Advocates  Remuneration Order  bequeaths upon the taxing officer  power to make any order hence  the taxing officer  made the right  orders by finding  that she  had no jurisdiction to tax  party and party bill of  costs.  In addition, that party and party bills of costs in the lower court  could only be assessed by the  Executive Officer.

Miss Abok also submitted that there having  been no taxation, a reference  under paragraph 11 of  the Advocates  Remuneration Order  did not  lie is incompetent  and an  abuse of  the court process as  there was  nothing  from the ruling  of the taxing  officer  to be challenged.  She urged  the court to strike out  the reference .

In a brief  rejoinder, Mr Nyamogo argued  that he  had complied with paragraph 11 of the Advocates  Remuneration Order by requesting  for reasons for taxation and  the taxing officer  also complied  with  the same paragraph by stating that  the reasons  were contained in the ruling  hence the decision was not made  judiciously.  He submitted that the Deputy Registrar  having mentioned  that there  was a  bill for taxation, she  should not  have  declined  to tax the  same.

I have  anxiously  considered the chamber  summons by Mr Nyamogo, the grounds  thereof, the supporting affidavit , grounds  of opposition and  the parties oral rival submissions.  I have  also considered  the history of this matter as  contained in the record  before me.  The main issue  for  determination , in my humble view, is whether  the  taxing officer( Deputy Registrar) was correct in finding   that she  had no jurisdiction  to tax  the  party  and party bill of costs  arising  from a matter before  a  magistrates  court and if so, what  orders should  this court  make.  There  are other  many ancillary  questions that his court will consider  and determine alongside  the  main issue  above.

I shall commence  from the very important  issue of  jurisdiction, and  state that  a court  of law exists  to  exercise jurisdiction.  The matters raised  before  this court and before  the Deputy Registrar  were far from being technical or  procedural technicalities. They were substantial  and require a finding.  Jurisdiction is  everything without  which, a court of law  acts in vain.  In my view, what  the respondents  raised  before the  Deputy Registrar when she  was  called upon to tax a bill of costs  that was between party and party  in a matter  which had been determined  in the lower court between the  same parties  was a preliminary  objection, on whether  or not the  Deputy Registrar  had jurisdiction  to tax such a bill.  And  the  Deputy Registrar did take  up and  consider  and determined  that  preliminary objection to taxation to the effect that  she had no jurisdiction  to tax party and party bill of costs  relating to a matter  determined in the  Chief Magistrate’s Courts.

The question is, did the Deputy Registrar  have the jurisdiction  to consider  whether  or not she  had the necessary jurisdiction to consider that issue of  jurisdiction.

The case of Mukisa Biscuits Manufacturing  Company Ltd V West  End Distributors  Ltd  [1969] EA by Law JA is instructive.  The Learned Judge  of Appeal defined  preliminary objection  and explained as follows:

“ so far as  I am aware, a preliminary objection consists of a point of  law which has been pleaded, or which  arises  by clear implication  out of  pleadings, and which if argued as a preliminary point  may dispose  of the  suit.  Examples  are an  objection to the  jurisdiction of the court, or a plea  of limitation, or a submission that the  parties are bound by the contract  giving  rise to  the  suit to refer dispute  to arbitration.”

Sir  Charles Newbold, President  of the court  stated  in the same  judgment  that :-

“ A preliminary objection is in the nature  of what  used to be  a demurrer.  It arises  a pure point of law which  is argued  on the  assumption that all fact pleaded by the other   side  are correct .  It  cannot  be raised  if any fact has  to be ascertained  or of what is sought is the  exercise  of judicial discretion.”

In raising  the issue of whether  the  taxing master/ Deputy Registrar has the  jurisdiction to tax a party  and party bill of  costs in a matter which  was not before the High Court but  before the magistrate’s court  in Machakos, in my view, the respondents  herein were not  seeking to invoke  the judicial discretion of the court. The preliminary  objection or jurisdiction of the Deputy Registrar /taxing officer  sought to  determine the issue of  whether  there was a cause of action  in limine.  In my view, that was  a well taken preliminary  objection because  if it  succeeded, the court   seized  of the matter would be  saved the costs  of a lengthy trial  and attendant  expenses on either  side.

The locus  classicus  on jurisdiction  is the celebrated  case of Owners  of Motor Vessel “Lilian S” V Caltex Oil  (Kenya) Ltd [1989] KLR 1 where  the Court of Appeal ( per Nyarangi JA  ……..held as follows:-

“ I think that it is  reasonably plain  that a question of jurisdiction ought to  be raised at the earliest opportunity and the court seized  of the matter is then obliged to decide the issue  right away on the material before it.  Jurisdiction is everything  without it,  a court  has no power to make  one  more step.  Where  a court has no  jurisdiction, there would be  no basis  for  a continuation of proceedings pending  other evidence.  A court of  law downs its tools in respect  of the  matter before  it the moment  it holds  the opinion  that it is  without  jurisdiction.”

The authority for the above holding  by the learned judge  of Appeal is found   in the writing  of John Beecroft  Saunders  in a treatise  which is  no longer  published headed.  Words and phrases legally defined- Volume 3: I-N at page 113 that :-

“ By jurisdiction is meant the  authority  which a court has  to decide  matters  that are  litigated  before it  or to take cognizance  of matters  presented  in a formal way  for its decision.  The limits  of this  authority  ate imposed by the stature, charter, or  commission  under which  the court is  constituted , and may be extended  or restricted  by the  like means.  If no  restricted  or  limit  is imposed  the jurisdiction is said to be unlimited.  A limitation  may be either  as to the kind and nature of the actions and matters  of which the particular court has  cognizance, or as to the area over  which the jurisdiction shall  extend, or it may partake of   both  these  characteristics .  If the jurisdiction of aninferior  court or tribunal (including an arbitration ) depends  on the existence  of  a particular state of facts, the court or  tribunal must  inquire  into the existence of the facts  in order to  decide  whether  it has jurisdiction, but, except  where the  court or tribunal has been given  power to determine conclusively whether  the facts  exist  where a court  takes  it upon itself to exercise  jurisdiction which it  does not possess, its  decision amounts to nothing.  Jurisdiction  must be  acquired  before judgment is given.”

From the above  decision  and principle as espoused, it  follows that if a court  lacks  jurisdiction, the matter  will be at an end and that court must  down its tools and make no further  step.

In this case, the applicants advocate obtained  a judgment for his costs  against  the respondents who were his clients.  That judgment  was obtained before  a Milimani subordinate /magistrate’s  court CMCC  12625 of 2006.  The  court awarded him kshs 69,975. 75 together  with costs of that  suit and interest.

The applicant herein(Decree holder) then filed his party to party bill of costs  in this cause  and in the said bill, he included  as  item No. 1, the costs  awarded to him in the Milimani CMCC 12625 of 2006.  He then fixed  a date for  taxation before the  taxing officer.  However, the respondents opposed the bill on  the grounds first that the same  was an abuse  of the court process since the suit for  which the  party  and party  costs  are derived  was  determined in the magistrate’s  court  and therefore  the proper forum was that  same court.  The respondents  also on a without prejudice  basis challenged  each of the items  in the bill  but nonetheless urged  the taxing officer to dismiss the party to party  bill of costs.

The applicant   maintained   that the taxing  officer had jurisdiction to tax the bills  as there was no jurisdiction for the  lower court to tax party and party  bill of costs;  and that therefore  the Deputy Registrar abused  her jurisdiction in refusing to  tax the bill .  I will therefore  determine the question  of whether the party and party bill of costs  herein was properly  before this court.

The legal position is that costs  in the  subordinate  court matters are assessed (not taxed) under schedule V11 of the Advocates Remuneration Order which  is specifically titled: “ costs of  proceedings  in Subordinate courts.”

The above position is  further fortified  by paragraph 51 of the Advocates Remuneration Order which  provides:

“Subject  to paragraph 22, the scale of costs applicable  to proceedings  in subordinate  courts( other than Kadhi’s courts  is that  set out in Schedule  V11. ”

The applicant  herein was  a party to the suit  in the lower court  which  was compromised  in his favour.  That being  the case, in  the event  that the subordinate  court ordered  that he be paid  his  costs of that suit, then he  ought to  have filed his  party to party bill of costs  in the  subordinate  court for  assessment.  The applicant  party having  obtained judgment  for costs, could not  be expected  to seek to tax another  advocate/client  bill of costs  as that would have  been a duplication  or  relitigation of  the claim.  Neither did  he  elect  to  tax his bill of costs  under Schedule  V of the Advocates Remuneration Order  as provided for  under  paragraph  22 (1) of the Advocates Remuneration Order  and hence, the  applicable  schedule, assuming he  was  awarded costs, it as per schedule VII.

Paragraph 22(1) of the said  order provides:

“ 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  schedule  V, but  if no election is made, his remuneration shall be according to the scale  applicable  under the other schedule.”

There is  no evidence that the applicant decree holder  applied for a certificate of costs  in the lower court matter.  Neither  did he attach to his party and party bill of costs  herein a decree  for the costs  of kshs  69,975. 75  awarded  to him in the  lower court  to demonstrate    whether  the court also awarded  him costs  and interest .

In other words, the applicant/advocate  did not  lay any basis  before  this court, for seeking to tax party  and party bill of costs in a matter  that was not before the  High Court.  The Deputy Registrar  of the High Court  exercises special jurisdiction of  the court (High Court)  in taxing  bills of costs, both party to party  as well as advocate/client  bills of costs.  It is only in the  exercise of that special jurisdiction  that any party satisfied   with the process of taxation would then  file a reference  to the Judge  in chambers  challenging  the taxation, as provided for under paragraph 11 of the Advocates Remuneration Order.

Paragraph 11 (2) of the Advocates  Remuneration Order applies to remuneration of an advocate  of the High Court by his  client  in contentious  and non contentious matters, as well  as the  taxation  of costs  as  between  party and party in  contentious  matters in the High Court, subordinate court other than  Muslim courts, tribunals appointed  under Landlord and Tenant Act and in tribunals established  under the Rent  Restriction Act.

Paragraph 10 defines  taxing  officer  who is to give reasons for  taxation as :

“ The taxing officer for the taxation of bills under  this order shall be the Registrar  of District or Deputy Registrar  of the High Court  or in the absence of  a Registrar  such other qualified officer  as the Chief  Justice may  in writing appoint.“

There are  duly appointed Deputy Registrars  for subordinate courts in the Judicial Service Act.  There is  no provisions   for challenging   assessments made by magistrates  courts  to the judge and neither is there provision  in the order for taxation of  subordinate  court  costs by the  Deputy Registrar/taxing officer  of the High Court .  In Bernard  Gichobi Njira V Kanini  Njira Kathendu & Another [2015] e KLR.  The appellant filed a reference   challenging the jurisdiction of subordinate  court in Wanguru to  tax bill of costs for  lack of  authority  by the Chief Justice  to tax the costs contending  that paragraph 10 of the Advocates Remuneration order only allows Registrars, Deputy  Registrars  or taxing officer  to tax bills  of costs.  Limo J. held that  subordinate  courts can award and assess  costs payable.  I agree and add that  the Deputy Registrar  of the High Court   only exercised  special jurisdiction  in accordance with the powers  given to him or her under the Civil Procedure  Act and  Rules made  thereunder.  The two  roles  of taxing officer  and Deputy  Registrar  are separate  and distinct and mutually exclusive  and one jurisdiction cannot be  substituted for the other.

In this case, albeit  the applicant  contends  that the Deputy Registrar had no jurisdiction to consider  whether she  had jurisdiction to tax the bill of  costs as  presented, which bill related  to party and party costs  in a matter  determined  in the subordinate  court, and that  therefore  she abused her  jurisdiction  for , she should simply  have taxed  the bill  of costs,  I beg to differ .  I hold that  first, she had  the power to  determine  whether   she had jurisdiction  to tax  the bill as  presented  before taxing  or declining  to tax  the bill.

Under paragraph 13A of the  Advocates and Remuneration  Order, the  taxing officer , for the purposes of any proceedings before him relating to taxation, has power and authority  to summon  and examine witnesses, administer oaths, and direct the production of books, papers and  documents  and adopt  all such  other  proceedings  as may be  necessary  for determining  any matter in  dispute  before him.

In my view, the determination on the question whether a party and party  bill of costs  arising from  a matter   before the subordinate  court could be brought  to the  High Court  for taxation by the taxing  officer as  opposed to being  assessed  in the same  cause is  and was squarely within her jurisdiction.

I however do not  agree with the  respondent’s submissions  that  since there  was no taxation, the applicant could  not file a reference.  A party who  invokes  the jurisdiction  of the taxing  officer can only challenge  that  decision   to the judge in chambers by way of  a reference.  Ringera J in Machira and Company Advocates V Magugu [2002] 2 EA 248 at page  422 put it aptly inter alia:

“………….secondly, as I understood  the practice relating to taxation of bills  of costs, any complaint  about  any decision of the  taxing officer whether it  relates  to a point  of law taken  with  regard to taxation or to a grievance about  the taxation of any item in the bill of costs  is ventilated  by way  of a reference  to the  judge  in accordance  with paragraph  1 1of the Advocates  Remuneration  Order.”

Similarly in Donholm Rahisi Stores (firm) V EA Portland Cement  Ltd [2005] e KLR Waweru J held:

“ taxation of costs whether  those  costs  be between party and  party or between advocate  and client  is a special jurisdiction  reserved  to the taxing officer  by  the Advocates  Remuneration Order.  The  court  will not  be drawn into  the arena  of taxation  except  by  way of reference  (from a decision  on taxation) made  under Rule 11  of the Advocates  Remuneration Order.  The present  application is not  a reference.  The application  seeks  an order that  would have  the effect of  interfering  with the special jurisdiction of the taxing officer, a jurisdiction that the court cannot  take upon itself.”

I also find that  the role of the taxing officer  is not that of a rubber stamp thus, to merely tax any  bill  of costs brought before  her.  She  has  the duty  to examine whether  or not she  has the   necessary  jurisdiction to tax the bill and  therefore  she cannot  be faulted  for finding that  she lacked  such jurisdiction.

I however, agree with the applicant that having   found that  she lacked such jurisdiction, she could only have  struck out  the bill of costs  and not grant  any leave .

Still on that issue of taxation of party and party  bill of costs  arising  from a matter  determined  in the lower court, I find  the decision  by Kasango  J in Angelo Gitonga  V Angelo Gitonga & Another [2010] e KLR  useful that:

“………there is  no provision on the Advocates   Remuneration Order for  taxation of subordinate  courts costs.  A practice  is however  arising, where  parties  in the subordinate  court  file  laborious and detailed bills  of costs, and then engage the magistrate in taxation.  That in my view  is uncalled for and should be  discouraged  subordinate  court’s party and party costs  should be  assessed  following  the provisions  of Schedule  VII of the order….”

In this case, there is  no evidence  that the applicant  applied for certificate  of costs  which is  normally granted in the subordinate  court as opposed to the certificate  of taxation normally given in  the High Court  by the taxing officer.

The proper procedure  for the applicant herein would have been  to file his party and party  bill  of costs  before the subordinate court and in the same cause  and if he was dissatisfied  with the assessment  in the subordinate  court, he would still seek this  court’s intervention in challenging  that assessment  as  was held  in the  Angelo Gitonga  V Angelo Gitonga  and  Another (supra), and in the event  that the assessment  would have  failed  to take into account the provisions  of Schedule VII of the Advocate’s Remuneration Order.

In Bernard  Gichobi Njira V Kanini Njira  Kathendu & Another [2015] e KLR Limo  J in a  reference  No. 4/2015 at Kerugoya High Court   where the applicant  had raised a preliminary objection in a subordinate court at Wanguru  Court  on the basis   that a Resident  Magistrate  had no jurisdiction to tax  the respondent’s bill of costs  presented before that  court  by the respondents who had  been  awarded   costs by the same  court, the  applicant  was overruled  by the subordinate  court and  he filed a reference in  the High Court  challenging that decision  and contending  that the  Resident  Magistrate in the absence of the  express conferment of the  jurisdiction to tax or  assess the bill of costs, had no  jurisdiction to tax/assess the same urging the court (judge) to set aside that taxation/assessment and strike out  the bill by the respondent.  The Learned Judge  correctly found that subordinate courts  had  jurisdiction to  determine  costs payable  in cases filed before  them and  that they  also had jurisdiction  to assess/tax costs.

I would further  agree with  the  learned judge  in the above cause  that Section 27 of  the Civil Procedure  Act gives  both the  subordinate  and High Court  discretion  and jurisdiction  to not only award  costs but to determine the extent to which   those  costs  are to  be  paid  and by which party.

Further  that paragraph 49 of the Advocates Remuneration Order clearly defines  a court to mean  both the High Court or  any judge thereof  or a Resident  magistrate’s  court or  a magistrate sitting in a magistrate’s  court.  A court  in part III of the  Advocates  Remuneration Order  is mandated  to  determine costs in  contentious matter as between  advocate and client  and between party and party.  It is therefore  clear  that a magistrate’s court  has jurisdiction  to assess  costs.

Furthermore, paragraph 51 of the  said Advocates Remuneration Order r clearly  gives the  applicable  scale  to be used  in the subordinate  courts as Schedule VIII.

I must also state that the respondent’s contention that the subordinate  court  party to party costs can only  be assessed  by the Executive Officer of that court  is not pegged on any law and  is in that regard  a misconception.  There is  no power given to the  Executive Officer  as a taxing officer  of that  court to assess or tax  costs  between  party to party.

The successful parties before a subordinate  court  are not  expected  to draw  an elaborate itemized bill of costs.  They  are  expected to write a letter  to that court  seeking  for an  assessment  of costs as proposed  or as drawn, upon which the sitting  magistrate or Deputy Registrar  of the subordinate court  may assess/approve  the costs  as drawn or  invite both parties  to the bill  to submit  on the bill before  a  certificate of costs is given.  Any party aggrieved by the  decision thereof may file a reference before  a judge  in chambers  under  paragraph  11 of the Advocates  Remuneration  Order.  It is therefore  a misconception  to advance an argument  that all costs  whether  party  or party or advocate/client  can only be taxed   or assessed  by the  taxing officer in the High  Court .

The upshot  of all the above  is that I find no merit  in the reference herein.  I uphold  the Deputy Registrar /taxing officer’s finding  that she  had no  jurisdiction  to tax a bill of  costs  in a  matter determined by the subordinate  court.  Accordingly, I dismiss   the reference  dated  8th April  2015  for reasons  that the applicant should have  and is  still at liberty  to file his  bill of costs  before  subordinate  court for assessment.

I order each party to bear their own costs of this reference.

Dated, signed and delivered in open court at Nairobi this 21st day of October 2015.

R.E. ABURILI

JUDGE