Patric Lihanda v Antony Kenyakisa, Albert Asigo, Peter Inwani, John Olemprokoi, Fred Oluhano, Zedekiah Orera, Elijah Mikwa, James Ogendi, Nathan Ondego, George Okello & Athur Amiga [2021] KEHC 8246 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

CIVIL SUIT NO 19 OF 2019

PATRIC LIHANDA..................................................................................PLAINTIFF

VERSUS

ANTONY KENYAKISA................................................................1ST DEFENDANT

ALBERT ASIGO...........................................................................2ND DEFENDANT

PETER INWANI.............................................................................3RD DEFENDANT

JOHN OLEMPROKOI..................................................................4TH DEFENDANT

FRED OLUHANO..........................................................................5TH DEFENDANT

ZEDEKIAH ORERA......................................................................6TH DEFENDANT

ELIJAH MIKWA...........................................................................7TH DEFENDANT

JAMES OGENDI...........................................................................8TH DEFENDANT

NATHAN ONDEGO......................................................................9TH DEFENDANT

GEORGE OKELLO....................................................................10TH DEFENDANT

ATHUR AMIGA..........................................................................11TH DEFENDANT

RULING

1.   In his Notice of Motion application dated 27th November 2020 and filed on 1st December 2020, the Plaintiff  sought that the orders of the Deputy Registrar made herein on 24th November 2020, 25th November 2020 and 27th November 2020 taxing and allowing Bill of costs lodged herein by the Defendants in the sum of Kshs 662, 540/=, 450,480 and 451,180 be set aside and/or varied to the tune of Kshs 75,000/- or any other amount as provided in the scales of Advocates Remuneration Order. His prayer for stay of execution was pending hearing and determination of the said application. He swore his Affidavit in support of his application on 27th November 2020.

2.   He averred that the costs were not in accordance with the Advocates Remuneration Order and were exorbitant considering that the matter was not complex. He contended that none of the taxed costs ought to have exceeded Kshs 100,000/=. He was apprehensive that the Defendants would execute against him as they had already taxed their Bills of Costs and thus urged this court to allow his application as prayed.

3.   In opposition to the said application, on 29th January 2021, the 2nd, 3rd, 4th and 5th Defendants filed Grounds of Opposition dated 27th January 2021. They did not file any written submissions and informed the court that they would rely on their said Grounds of Opposition.

4.   On 3rd February 2021, the 6th, 7th and 11th Defendants filed Grounds of Opposition and Written Submissions both dated 14th December, 2020.

5.  The 8th, 9th and 10th Defendants did not respond to the present application.

LEGAL ANALYSIS

6.  The Plaintiff submitted that the suit herein was not for a specific amount of money and neither could the value be derived from the pleadings. It was his contention that the claim was only for transfer of various cases to Kakamega Court principally. He argued that for such a suit the amount provided by the Advocates Remuneration Order is between Kshs 40,000/= and Kshs 75,000/= as looking at the pleadings filed by the Defendants, they would not have incurred what they claimed in the bills or what was awarded to them by the Deputy Registrar. He placed reliance on the cases of Charles Lutta Kasamani t/a Kasamani and Co Advocates vs Patrick Otieno Okwaro and Geoffrey Dennis Oluoch t/a Otieno, Yogo & Co. Advocates Kisumu HCCC No 47 of 2011 (eKLR citation not given) in support of his case.

7.  The 2nd, 3rd 4th and 5th Respondent submitted that the Taxing Officer did not error, either in law or fact, that she did not misapprehend herself on the principles of law and hence the impugned decision herein was not premised on any such wrong principles and neither were the figures awarded manifestly inappropriate, unreasonable and unjust and that the Plaintiff did not demonstrate any basis to warrant the interference with the discretion and powers of the taxing master.

8.  They argued that the taxation was pegged on several factors including but not limited to instruction fees, getting up fees, court attendances, filing fees, disbursements among other considerations.

9.  They further averred that the said application did not satisfy the principles in regard to the grant of orders of stay of execution and no such security of costs has been issued and or offered by the Plaintiff herein, a position that was supported by the 6th, 7th and 11th Defendants who termed the present application a mere afterthought and lacked specificity and/ or materials to warrant the interference by this court, of the taxing master’s decision.

10. They contended that the present application was devoid of merit and was premised on a selective reading of the Advocates Remuneration Order. They pointed out that the Plaintiff fully participated in the taxation proceedings by filing responses, Written Submissions and authorities and hence, it was absurd for him to contend that the taxing master did not consider the Advocates Remuneration Order, the nature of the matter, and the parties’ respective’ arguments.

11. They placed reliance on the cases of Mutuli and Apopo Advocates vs Jirongo [2010]eKLR, Jeremiah Muku vs Methodist Church in Kenya Trustees Registered & Another [2015]eKLR and Republic vs Commissioner for Cooperative Development & Another Ex parte County Council of Kiambu [2015]eKLR to buttress their arguments.

12. It is trite law that the High Court will not interfere with the taxing officer’s decision unless it can be 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 or the taxing master considered matters that were irrelevant or failed to consider relevant facts.

13. If the High Court finds that the decision of the Taxing Officer discloses errors of principle materially have affected the assessment, it can either re-tax the bills itself and/or remit the same back to the taxing officer for reassessment, the latter which is a better option as the taxing master is an expert in taxation. In fact, the High Court ought not to interfere where the questions are solely on quantum as that is an area where the taxing Officer is more experienced and therefore more apt to the job. The High Court will therefore only intervene in exceptional cases.

14. It is within the discretion of the taxing master to increase or reduce the instruction fees and the amount of the increase or reduction is discretionary. The taxing master must first set out the basic fee before venturing to consider whether to increase or reduce it.

15. The full instruction fees to defend a suit are earned the moment a defence has been filed and the subsequent progress of the matter is irrelevant to that item of fees. The mere fact that a defendant does research before filing a defence and then puts a defence informed of such research is not necessarily indicative of the complexity of the matter as it may well be indicative of the advocate’s unfamiliarity with basic principles of law and such unfamiliarity should not be turned into an advantage against the adversary. The aforesaid holdings were set out in the case of First American Bank of Kenya vs Shah and Others [2002] 1 EA 64.

16. It is important that advocates are well motivated but it is also in the public interest that costs be kept to a reasonable level so that justice is not put beyond the reach of poor litigants.

17. In all her three (3) Rulings, the taxing Officer indicated that this suit was instituted vide an application dated 8th October 2019 which was filed on 9th October 2019. Schedule 6 of the Advocates Remuneration (Amendment) Order 2014 was therefore applicable herein. She did not explain why this was so. She further observed that the said application did not observe the suit value. For that reason, she classified the instruction fees under “other matters” of Paragraph 1 of the 6th Schedule.

18. Schedule 6 Paragraph 1and under the sub heading, “other matters” of the Advocates Remuneration (Amendment) Order 2014 provides as follows:-

“Other Matters

To sue or defend in any case not provided for above; such sum as may be reasonable but not less than-

If undefended………………………………………………………….45,000

If defended……………………………………………………………..75,000”

19. Having said so, the court perused her Rulings and noted that she awarded getting up fees. There was no indication in the file that matter herein had been listed for trial. Indeed, Pre-trial directions had not been given in this matter. It was therefore not clear under what circumstances getting up fees were awarded. The reasoning of how the totals of the taxed costs were computed was also not shown in the Rulings making it difficult to follow how the amounts were computed. The Taxing Master did not also explain how she arrived at hefty amounts for drawing Replying Affidavits.

20. This court also noted that in her Ruling of 4th February 2020, Cherere J allowed the Plaintiff’s application dated 8th October 2019 and filed on 9th October 2019 to transfer several matters to Kakamega High Court. She directed that the Plaintiff would meet the costs of the said application. It was not clear to this court whether the Taxing Master taxed the costs based on the application or the entire suit. Further clarification was required to justify how she arrived at the totals.

21. As the reasoning of the Taxing Master of why and how she had arrived at the figures, justice demanded that the Bills of Costs be re-taxed with a view to giving the correct picture for consideration by the High Court, if at all a reference was filed afresh.

DISPOSITION

22. For the foregoing reasons, the upshot of this court’s decision was that the Plaintiff’s Notice of Motion application dated 27th November 2020 was merited. The effect of this was that the orders of the Deputy Registrar made herein on 24th November 2020, 25th November 2020 and 27th November 2020 taxing and allowing Bill of costs lodged herein by the Defendants in the sum of Kshs 662, 540/=, Kshs 450,480/= and Kshs 451,180/= be and are hereby set aside.

23. The effect of this is that the two (2) 2nd, 3rd 4th and 5th Defendants’ Notice of Motion dated 30th November 2020 and the 6th, 7th and 11th Defendants’ Notice of Motion dated 30th November 2020 seeking their respective Certificate of Costs to be adopted as Judgement of this Court be and are hereby dismissed.

24. The court hereby remits that the respective Defendants’ Bills of Costs for taxation by any Taxing Master other than Hon. L. Akoth, DR High Court of Kenya Kisumu.

25. Each of the parties will bear its own costs.

26. It is so ordered.

DATED and DELIVERED at KISUMU this24thday ofMarch 2021

J. KAMAU

JUDGE