Rose Gitau Ndungu v Shamim K.M.A Khimji [2022] KEBPRT 105 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 55  OF 2021 (MOMBASA)

ROSE GITAU NDUNGU...............................................APPLICANT/TENANT

VERSUS

SHAMIM K.M.A KHIMJI.................................RESPONDENT/LANDLORD

RULING

1. Before me is a party/party bill of costs by the landlady filed pursuant to the orders of 12th July 2021.  The landlady is seeking to recover a sum of Kshs.51,785/- all inclusive against the Tenant.

2. I directed the said bill of costs to be disposed of by way of written submissions and both parties complied.

3. The schedule of the Advocates Renumeration (Amendment) order, 2014 applicable in assessment of costs is schedule 8.

4. According to schedule 8 paragraph 6, the ‘lower scale’ at paragraph 7 shall be applied where the matter is disposed of ex-parte by consent or by a decision on a preliminary question of law not dependant on fact and the ‘Higher scale’ shall be applied in all other cases.

5. In this case, the matter was determined on a preliminary question of law and I therefore agree that item 1 should be Kshs.15,000/- as submitted by the tenant.  I therefore tax off Kshs.7,500/-.

6. Items 2,3,4,5,6,7,8,9,10,11,12 and 14 are opposed on the basis that they should be part of instructions fees in line with schedule 8a paragraph 7 which provides as follows:-

“7(1) The instruction fee, which shall include taking instructions, drawing or perusing or similar documents, engrossing and filing the same, may be computed in accordance with sub paragraph(2)”.

7. On the other hand, the landlady submits that the items are charged in accordance with  schedule 8A paragraph 8(g) of the Renumeration order which provides for “drawing and filing any other affidavits”.

8. Items 2,3,4,5,6,7,8,10,11 and 13 do not fall under paragraph 8(g) of the Renumeration order as they are not “any other affidavits”.  I therefore proceed to tax the same off.

9. Items no. 9,12 and 14 relate to attendances which are allowed under schedule 8A paragraph 8(b) of the Renumeration order and are therefore allowed at Kshs.1000/-.  I therefore tax off Kshs.3000/- from item no. 9 as no expenditure receipts are attached to prove such expenditure.

10. Item 15 is opposed on grounds that service was by email.  The said mode of service is recognized under order 5 of the Civil Procedure Rules.  I take this to be equivalent to service by post and a sum of Kshs.100/- is allowed.  I therefore tax off Kshs.2175/-.

11. Item 17 is objected to as no hearing took place.   I note that indeed the matter was just mentioned and a sum of Kshs.1400/- is allowed.  I therefore tax off Kshs.700/- as submitted by the tenant.

12. Item 18 relates to mention on 18/6/2021.  I agree that a sum of Kshs.1400/- is payable.  I tax off Kshs.700/-.

13. Item 9 relates a mention on 12th July 2021 and a sum of Kshs.2600/- is taxed off.

14. Item 20 is objected to in view of the provisions of Order 69 (3) of the Advocates Renumeration order.  However, this is a mere technicality and no prejudice is cited by the landlady to the inclusion of the item in the body of the main bill of costs.  I shall allow  it as prayed.

15. Items 21, 22 and 23 are borne by the court record and needed not be proved by the landlady and are hereby allowed as prayed.  Item 24 is taxed off as being not consequently, the total amount taxed off as being not provided for.

16. Consequently, the total amount taxed off is Kshs.24,275/- to leave the bill at Kshs.27,510/-.

17. I therefore tax the bill at Kshs.27,510/- and a certificate of costs shall issue accordingly.

It is so ordered.

DATED, SIGNED AND DELIVERED THIS 12TH DAY OF JANUARY 2022 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:-

Sibanda for Respondent

No appearance for Applicant