Ramuji v East African Power and Lighting Co. Ltd (C.C. 111/1926.) [1927] EACJ 4 (1 January 1927)

## ORIGINAL CIVIL.

Before SHERIDAN, J.

## ABDUL HUSSEIN RAMUJI

$\boldsymbol{v}.$

## THE EAST AFRICAN POWER AND LIGHTING CO., LTD. $C. C.$ 111/1926.

## Rules of Court (Advocates Remuneration and Taxation of Costs) No. 2 of 1916.

Held: - That the fee to which an advocate is entitled for attendance when case cannot be heard, and no notice has been given on the<br>previous day, is Sh. 30/-. Further held that if one sixth of the<br>bill of costs, exclusive of Court fees, be disallowed, the party presenting the bill for taxation shall not be entitled to the items arising out of the preparation and service of the bill or to the fee for attendance at taxation.

RULING (dated 12-2-27).—Two points have been referred to me. The first is whether plaintiff is entitled to charge Sh. 70 for an attendance in court on a day fixed for hearing when the case was The taxing officer allowed Sh. 30. On the occasion not reached. of the attendance Counsel was not engaged in conducting a cause. I understand the position to be that he was on the particular day prepared to conduct the case and actually had his witnesses in attendance. The taxing officer dealt with the case under the paragraph reading: "In Court... on any matter on a day fixed by the Court for hearing when case cannot be taken and notice has been given on the previous day that case will not be taken ... Sh. 30." (Top of page 15 of Rules of Court No. 2 of 1916). I find it difficult to construe this paragraph but after considering the context I am of opinion that the construction is to be arrived at in this fashion: - The subject dealt with is one of attendance and if notice is given to an Advocate on a day preceeding the day fixed for hearing that the case will not be taken no occasion arises for him to attend. The very fact that the subject relates to attendances indicates to me that the word "no" should be read into the paragraph before the word "notice". In construing the paragraph I am prepared to read it as so altered and the justification for doing so lies in its being in conformity with the Certainly the fee of Sh. 70 is not provided for, and context. were it the case that the construction put by me on the particular paragraph happened to be wrong the only sanction for any fee would be contained in a later paragraph reading: "Special, not otherwise provided for, at taxing officer's discretion." I am of opinion that in the first place the taxing officer would have been wrong to have allowed Sh. 70, the fee claimed, secondly that

he was entitled to import the word "no" in reading the paragraph at the top of page 15 in order to conform with the context, and thirdly that if he happened to be wrong in so doing the position would be either that the Rules provided for no fee or else a special fee in his discretion, and I have no grounds for thinking that such special fee would exceed Sh. 30. In conclusion my view is that whether the taxing officer was right or wrong in his reasoning (and I think he was right) I am in agreement with the result at which he arrived.

The second point calls for a ruling as to the meaning of the words "shall not be entitled to the costs of such taxation" appearing in Rule 41. The taxing officer having reduced the bill by one-sixth disallowed all the items arising out of the preparation and service of the bill in addition to the fee for attendance at taxation. In doing so he was following what I understand to be a settled practice. More particularly he followed a decision of Mr. Fawcett in taxing a bill of costs in Civil Case No. 81 of 1912; this decision was objected to—the objection being referred to Hamilton, C. J., who dismissed it after having had the advantage of hearing Counsel. In matters of taxation so far as I am aware no appeal lies from a decision of a ruling of a Judge of this Court, and assuming that to be so as a matter of principle it is desirable that the previous rulings of the Court should be followed. $\mathbf{A}$ departure from this principle would have the undesirable result of causing uncertainty in the minds of advocates and litigants as to what practice obtained. I dismiss the objection to the taxing officer's ruling on this point; he was bound to rule as he did and I also find myself similarly bound. Nor can I discover any ground for differing from the interpretation put upon the rule by the learned Chief Justice.