Singh v Mavji (Civil Appeal No. 43 of 1950) [1952] EACA 297 (1 January 1952)

## APPELLATE CIVIL

### Before DE LESTANG, J.

## DIDAR SINGH s/o PURAN SINGH, Appellant (Original Defendant)

$\mathbf{v}$

# PURSHOTAM MAVJI, Respondent (Original Plaintiff)

# Civil Appeal No. 43 of 1950

(Appeal from the decision of the First Class Magistrate's Court, Nairobi-Miss Rugg Gunn)

Taxation of costs—Taxing Officer's discretion—Necessity to record reasons in exercising.

The respondent to an appeal from the Resident Magistrate's Court taxed a party and party bill of costs on the appeal being dismissed. On taxation these claims were allowed for perusing letters from the appellant's advocate concerning arrangement between the parties advocates regarding payment of the decretal amount against an undertaking to refund the same in the event of the appeal succeeding.

An instruction fee of Sh. 2,500 was claimed and Sh. 1,500 allowed. The Taxing Officer gave no reason for his decision. The value of the subject matter was Sh. 500. The Judge who heard the appeal described it as a simple one and did not call upon the respondent to address him. Item on instructions sent for taxation by another Taxing Officer.

**Held** $(14-3-52)$ .—(1) The letter concerning the arrangement between advocates was not a party and party item.

(2) The taxing officer when exercising his discretion should give reasons therefore. (3) An attendance at Court when the appeal is not reached cannot be claimed as conducting the appeal. The respondent claimed Sh. 120 attending Court when appeal not reached. The Taxing Officer allowed Sh. 70 per a half day.

Objection allowed with costs.

Case referred to: Hasham Kara v. Abdul Moltamed Hussein Karmali, 22 K. L. R. 1.

#### D. N. Khanna for appellant.

Bhandari for respondent.

ORDER.—This matter comes before me by way of objection to the decision of the Taxing Officer in regard to six items in a bill of costs under rule 7, Taxation Rules, 1916.

The first three items may be considered together. They are items $3$ , $4$ and $5$ of the bill of costs. Each item is a claim of Sh. 2 for perusing a letter from the opposite party's advocate. All three items were allowed by the Taxing Officer. As the Taxing Officer has given no reasons for his decision it is impossible to say on what principle he allowed these items especially as he disallowed the previous items which related to the same matter. The three letters in question concerned an arrangement reached by the advocates regarding the payment of the decretal amount against an undertaking to refund the same in the event of the appeal, which was being filed, succeeding. I cannot, for the life of me, see how these can be made party and party costs in the appeal. Even if they are proper costs in the appeal they are surely included in the fee for instructions and cannot be claimed for separately. I consider that the Taxing Officer was wrong in allowing these three items.

The next item is No. 9 which reads as follows:-

"Instruction to oppose the appeal which involved varied questions of law and facts and particularly Law of Contract-Entire and divisible contract-Indian Evidence Act Misdirection, etc. and law relating to building contracts generally-Many decisions of Court of Appeal for Eastern Africa and other cases to be traced. Sh. 2,500.00."

A fee of Sh. 2,500 was claimed under this head and Sh. 1,500 was allowed. Here again the Taxing Officer gave no reason whatever for his decision. Since, however, the value of the subject matter of the appeal was Sh. 500 and since the minimum prescribed instruction fee in such a case is Sh. 60 one can only presume that the Taxing Officer considered that a higher fee was merited for one or more of the grounds set out in the proviso to the fees for instructions set out in the First Schedule (Costs in Supreme Court) to section 111 of Rules of Her Majesty's Supreme Court of Kenya, which reads as follows:-

"Provided that the Taxing Officer in the exercise of his discretion shall take into consideration the other fees and allowances to the advocates (if any) in respect of the work to which any such allowance applies the nature and importance of the cause or matter, the amount involved, the interest of the parties, the fund or person to bear the cost, the general conduct and costs of the proceedings, and all other circumstances."

If the taxing officer treated this appeal as entailing a great deal of work then he was clearly wrong and misdirected himself. The learned Judge who heard it said in his judgment that it was a simple one, so simple in fact that he did not even call upon the respondent to address him. It was indeed quite simple. The sole question in the appeal was whether the learned Magistrate, having held the contract to be entire and not to have been performed in full was right in holding that the contractor was entitled to be paid for part of the work performed. The Court of Appeal held that the contract was not entire and that in the result the learned Magistrate had rightly decided. To describe the appeal as in the bill of costs as "involving varied questions of law and facts" is a gross<br>exaggeration which must have misled the Taxing Officer.

The principles on which a Court of Appeal acts in appeals against taxation are too well established to merit restatement. I will merely refer to Hasham Kara v. Abdul Mohamed Hussein Karmali, XXII K. L. R. p. 1 where the authorities are reviewed. Applying the principles therein enumerated to the facts of this case I consider that in allowing such a large sum in such a simple case the Taxing Officer must have acted on a wrong principle. Item 9 should therefore be retaxed by another Taxing Officer. The fifth item No. 11 reads as follows:-

"Attended Court for the whole day; but the appeal could not be reached Sh. 120."

Sh. 120 was claimed but Sh. 70 only was allowed. Here again the Taxing Officer gave no reason for his decision, but it would appear that he acted under Supreme Court Rules of Court which reads: "Attending Court conducting causehalf day Sh. 70." If he did so he was clearly wrong because it is common ground that the appeal was not reached on that day. It follows that the respondent's advocate did not conduct the case on the day in question. This item is disallowed.

The last item is No. 24 which provides for a $33\frac{1}{3}$ per cent increase on all items. As items 3, 4. 5 and 11 have been disallowed and item No. 9 remitted this item will have to be adjusted accordingly in due course.

In the result this objection succeeds with costs.