Said Abdalla Zubedi v Kenya Commercial Bank Ltd [2016] KEHC 3799 (KLR)

REPUBLIC OF KENYA

INTHE HIGH COURT OF KENYA AT NAKURU

CIVIL SUIT NUMBER 332 OF 1999

SAID ABDALLAZUBEDI ..........................PLAINTIFF

VERSUS

KENYACOMMERCIAL BANKLTD......DEFENDANT

RULING

1.   This is a ruling on the Reference from a taxation of the applicants Bill of Costs dated 4th  December 2014 and delivered on the 8th  July 2015 by the taxing master Hon. M.A. Otindo.  The Bill of Costs as drawn was in the sum of Kshs.8,427,994,44. The Honourable  Taxing  Master taxed and certified the Bill at Kshs.330,000/=.   Being dissatisfied with  the said certificate of costs, the applicant  and pursuant to the procedural  provisions  under the Advocates  Renumeration  Order  2009,  a  notice  of  objection  to  the taxation was drawn on the 9th  July 2015 and filed  on the 15th  July 2015 indicating that there was an objection to the entire decision on the bill of costs.

The taxing officer was requested to give reasons for her decision pursuant to Rule 11(2) of the Order, 2009but that was not done.

2.  The  court  finds  that  the  procedural  requirements  for  the  filing  of  a reference were observed. This is in response to the Respondents grounds of objection No. 1 filed on the 30th  October 2015 that the plaintiffs application dated 22nd  July 2015 is incompetent and misconceived for being in breach of Rule 11of the Advocates Renumeration Order.  It is submitted that the notice of objection as filed by the applicant and directed to the Taxing master did not itemise the items that were being objected to, and therefore the taxing officer was unable to give reasons for the taxation, and that as a result there was no valid Reference filed.

3.  I have looked at the applicant's notice of objection to the decision of the taxing officer dated 9th  July 2015 and filed on the 15th  July 2015.

It states

“­­­­ ----that the plaintiff objects to your decision delivered on 8thJuly 2015 on the entire bill of costs dated 13thMarch 2015. ”

From the reading of the above notice the objection was to the entire bill, all the items as taxed.  I am satisfied  that a competent reference was filed. (emphasis mine)

4.  The more substantive  issues  on the applicants  Chamber Summons dated 22nd  July 2015, and brought under the provisions of Section 1A, 1B, 3, 3Aof  the Civil Procedure Act and Rule 11of the Advocates Renumeration Order 2009are couched as follows:

1.  .................      ­­­­­­­

2.  That the  Honourable Court be pleased  to set aside the Taxing masters decision delivered on the 8thJuly 2015.

3.  That  the Honourable court be pleased to re­assess the fees due to the  items  1­-103 in respect  of the  bill of Costs dated  13thMarch2015 and make a finding of the same.

4. In the  alternative  and without  prejudice  to the  foregoing,  the Honourable court be pleased to remit items Number 1­103 in respect of the Bill of Costs dated 13thMarch 2015 for review andreconsideration with direction on the taxation.

5. That costs of the application be provided for.

5.   The grounds upon which the orders are sought are to be found on the face of the application which is also supported by the affidavit of Kisilah Daniel Gor, Advocatefor  the  applicant.    It  is  stated that  the  taxing  officer misdirected herself and acted contrary to the established principles of taxation of party to party  Bills of Costs, that she did not take into account the work done, complexity of the subject, time expended and further failed to consider the Respondent's  submissions dated 11th   May 2015 that the applicant was entitled to Kshs.433,855/=, and that no reasons where given as to why instructions fees on the  counterclaim and getting up fees were taxed at exceptionally low figures despite the amounts involved.

6. The application is opposed by a Notice of objection pursuant to Rule 11(i) of Advocates Renumeration Orderdated 9th  July 2015 and filed on the 15th  July 2015.

7.  Parties agreed to file written submissions. In his submissions, Mr. Kisila Gor Advocate for  the  applicant  urged that  the  orders  sought are merited. Relying   on the provisoto Schedule VIof  the Order, 1997that a taxing officer ought to consider the nature and importance of the matter, amount involved interest of parties and the general conduct of the proceedings, it was his submission that the taxing officer failed to apply those principles, and failed to give valid reasons as to why the bill was downscaled considerably.    It  was further  submitted  that  since the respondents  had proposed a sum of Kshs.433,855/= by its submissions, no reason was given as to why the bill was taxed below the offer by the respondent. Mr. Kisila  the value could be determined from the pleadings.   It was his submission that the taxing officer should  have applied  Schedule VI Paragraph 1(b)and Paragraph 2 of the 1997 Advocates Renumeration Order. He urged the court to grant the orders as sought.

8.  The Respondent by its Advocate, Mr. Evans Gaturu filed  submissions on the 20th  January 2016. It was stated that the applicants Reference was bad in law for failure to follow  procedural requirements as stated in Rule 11 of the Advocates Renumeration Order.

I  have  already  made  a  finding  on  this  issue,  that  the  Reference is competently filed before the court.  See Paragraph 1 and 2 above.

9.  On the party to party bill of Costs, it is submitted by the respondent that the taxing officer applied her mind  and the law as provided in the relevant schedules  of the Advocates Renumeration Orders,and also considered the proviso(i)to Schedule VI of the Renumeration Orders 1997and2006, and awarded fair fees after considering the nature, importance, amount involved, interest of the parties and the general conduct of the proceedings and the award given at Kshs.330,000/= was fair, and ought not be disturbed.

10.  It was further  submitted that the case never went up to full hearing  but settled out of court.  It is further stated that the claim was not liquidated but merely to stop the defendant from realising the securities and give account for alleged  high interest rates applied  by the defendant over the overdraft;  and  therefore  was not  of  a  complex  nature  as to  warrant submitted  that  there is  no reason for  doubling  or  tripling the sum of Kshs.55,000/= to Kshs.2,500,000/=, while on the counterclaim of Kshs.14,211,700/=  a maximum  fees  should  be Kshs.198,165/=  and no where can it be close to Kshs.2,500,000/=.

Though admitted that the case took over 16 years to be settled, it is stated that it was not complex, nor do the number of court appearances and the bulk correspondence exchanged make it complex.

On the offer of Kshs.433,855/= it is submitted that the taxing officer was not  bound by the said offer  but  by her discretion  to  award  what  she deemed fair and reasonable.

12.  The court has considered the application, the party to party bill of Costs as filed and submissions before the taxing master together with all the pleading.  I have not seen any reasons given by the taxing officer through a requirement under the Advocates  Renumeration Orders.

Notwithstanding  the  failure,  I  have evaluated all  the  reasons  for  and against the taxing officer's decision.   Ordinarily, a Judge will not interfere with the discretion of the taxing masters decision. In the assessment of the costs.

In the case Kipkorir, Titoo & Kiara Advocates ­vs­ Deposit  Protection Fund Board (2005)I KLR, matters and circumstances when a Judge may interfere with the discretion of a taxing officer's decision were discussed.

The  taxing  officer  is  obligated  to  consider matters  in  proviso  (i)of other relevant factors.

If taxing officer fails to apply the formula for assessing instructions fees or costs  in Schedule VIor  fails  to  give  due consideration  to  all relevant circumstances   particularly  in  matters   specified   in  proviso   (i)of  the schedule that would be an error in principle.  That in my view could have been evidenced by reasons for the taxing officer, but then, this the officer failed to give.

It further goes on to state that if a judge finds that an error of principle has been committed, the general practice is to remit the question of quantumfor the decision of the taxing officer.  The Judge has however a discretion to deal with the matter if the Justice of he case so requires.   The court in the Kiptoo casefurther held that if the taxing officer totally fails to record any reasons and to forward them to the objector, as by law required, that would be a good ground for a reference and absence of such reasons would not itself preclude the objector from filing a competent reference.

For reasons above, the court makes a finding that the taxing officer made an error in principle by her failure to give  due consideration  of all the relevant  circumstances  in  Schedue VI  of  the  Order,and  particularly matters specified in the Proviso (I)of the Schedule VIand the failure to give reasons for the decision.

13.  I shall  therefore set aside the taxing officer's decision  dated the 8th   July 2015 and emit the party to party bill of costs dated the 4th  December 2014

In doing so, the taxing officer is to apply the formula provided for in the assessment of   instructions   fees  on  the applicants   claim,   and   the counterclaim  as well as getting up fees (if applicable)  and consider  the numerous  court attendances  as stated in Schedule VI of the Advocates Renumeration Order.

While   doing so, the taxing officer shall give due consideration to all relevant  circumstances  of the case including court proceedings  and any other factor that falls under the proviso(i) of Schedule VI A(I).

14.  For those reasons, the  applicant's  application  dated 22nd   July  2015  is allowed in terms of Prayer 4 due regard to directions given on quantumas stated in paragraph 13 above.

There shall be no order as to costs in the application.

Dated, signed and delivered in open court this 14thday of July 2016

JANETMULWAJUDGE