Khakona (suing on her own behalf & on behalf of Vincent Khakona (deceased) v Prime Insurance Limited & Manchester Chunda (Civil Cause 760 of 2019) [2021] MWHC 227 (17 November 2021)

THE REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CIVIL CAUSE NO.760 OF 2019 BETWEEN Steveria Khakona (Suing on her own behalf and on behalf of Vincent Khakona (Deceased).................................................................................................................... Plaintiff AND PRIME INSURANCE COMPANY LIMITED....................................................]« Defendant MANCHESTER CHINUNDA.......................................................................... 2nd Defendant CORAM: Madalitso Khoswe Chimwaza, Assistant Registrar RJ. Mhone E. Chikwakwa C. Zude Counsel for the receiving party Counsel for paying party Court Clerk ORDER ON TAXATION OF PARTY AND PARTY COSTS 1. This is a ruling on the expense rate per hour to be used in taxing a party and party bill of costs and some items in the bill. The paying party filed a sworn statement in opposition to some heads of the bill. Both parties were present during the taxation hearing. The taxing master will proceed to do a detailed assessment of costs on a standard basis, not allowing costs that have been unreasonably incurred or are unreasonable in amount. The Court will allow costs that re proportionate to the matter and will resolve any doubt it may have as to whether costs were reasonably incurred or reasonable and proportionate in amount in favour of the paying party. Order 31 Rule 4 (1), (2) (a) and (b). FEE EARNER 2. Counsel for the paying party submitted that the bill should be taxed at the expense rate of K30, 000 per hour because the file shows that it was Counsel Kambalame who appeared in court. In defending the claim for fee earner of K40, 000 per hour Counsel Mhone said the bill was for all the work done on file and not just appearance. He said he only gave a brief to Counsel Kambalame to appear in Court. 3. Looking at the Court record starting with the summons commencing the action it is clearly labelled that it was filed by Racane Associates, Legal Practitioner for the claimant whose address for service is Lingadzi House City Centre, Private Bag B413, Lilongwe. The other documents are bearing the address of service to be Plot No. 9/42, Area 9, Opposite Indian High Commissioner, Private Bag B414, Lilongwe, 3. 4. There is no doubt that this is an indication that the firm has an office in Lilongwe and if there were any matters they were being handled by lawyers based in Lilongwe. The documents do not state that they were prepare by Counsel Mhone or Counsel Kambalame. It is not a secret that Counsel Mhone of Racane & Associates has branches in Mzuzu and Blantyre. For a matter filed in Lilongwe, it would not make economic sense in both time and expense for Counsel to prepare documents from either Mzuzu or Blantyre to be filed in Lilongwe when there is a branch in Lilongwe. This Court therefore resolves the doubt in favor of the paying party by adopting the expense rate for Counsel Kambalame who made appearance in Court as he was based in Lilongwe. 11. Upon considering all facts surrounding the matter, the position of the law, the discretion of the Court in taxation matters, and the fact that the case was not complex as it dealt with damages for loss of life and dependency, this court is of the view that an expense rate of K30,000 per hour applicable to Counsel Kambalame should apply in taxing the bill of costs. It is so ordered. On the actual number of hours the court proceeds as follows: ACTIVITY PART A A. Attending to client and Receiving instructions and other meetings B. perusing police report and death report TIME ALLOWED AMOUNT TAXED AMOUNT 10 hours K300,000 1 hour K30,000 Total Hours (A and B) 11 hours K3 30,000.00 C. Court documents perused: Order on assessment of damages 1 hour K30,000 K30,000.00 D. Reading and Research: Books and Statutes 9 hours K127,000 Cases (23) 23 hours K690,000 K817,000.00 KI,177,000.00 K588,500.00 KI,765,500.00 Total for part A,B,C and D E. General care and Conduct 50% Total for Part A,B,C,D and E F. Documents Prepared Summons Default judgment Witness statement Bundle of assessment of damages Notice of assessment of damages G. Court attendances: 6 hours 8 hours KI 80,000 K240,000 Travelling and waiting 2 hours K60,000 Total for F and G K300,000.00 Disbursements: Court Fees Stationery Travel expenses will not be allowed as it has been established that Counsel who was attending to the matter was based in Lilongwe and it would be an unreasonable expense that was incurred. Court is resolving this doubt in favor of the paying party. Total Outlays TAXATION K30,000 K150,000 KI 80,000 a. Preparing party and party bill of 4 hours K120,000 costs and hearing. b. Attending taxation proceedings Ihour K40.000 by Counsel Mhone. Total no of hours (5) c. Care and Conduct at 50% of (a) and (b) d. Travelling to High Court for taxation proceedings and waiting Totals Sub total Add 16.5% VAT KI 60,000 K80.000 K80.000 K320.000 K320,000.00 K2,385,000.00 K393,525.00 K2,778,525.00 Add outlays KI 80,000 180,000.00 Total bill Payable K2,958,525.00 Any party not satisfied with the ruling and the taxed bill has the right to review within 30days. Made in Chambers this 17th day of November 2021 Madalitso KHoswe Chimwaza ASSISTANT REGISTRAR