Tobias O. See v Maseno University,Dominic Makawiti,Vitalis Ouko & Bedrock Holdings Limited [2017] KEHC 4493 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT KISUMU

PETITION NO. 7 OF 2015

BETWEEN

TOBIAS O. SEE…………………………..……..… PETITIONER

AND

MASENO UNIVERSITY…………………..…1ST RESPONDENT

PROF. DOMINIC MAKAWITI……...………..2ND RESPONDENT

DR. VITALIS OUKO………………........……3RD RESPONDENT

BEDROCK HOLDINGS LIMITED….………..4TH RESPONDENT

RULING

1. The application before me is a chamber summons dated 10th April 2017 made under Rule 11(2) of the Advocates Remuneration Order.  In essence, it is a reference from the ruling delivered by the Deputy Registrar as the Taxing Officer on 4th October 2016 in respect party and party bills of costs filed by each respondent. The contested issues are the instructions, getting up and attendance fees awarded by the Deputy Registrar.

2. Before I deal with the substance of the reference, a brief background of the matter will suffice. The petitioner filed a petition dated 16th March 2015 claiming that his rights under various provisions of the Constitution had been violated. He cited Articles 27(1), 29(d), 31(c) and (d), 47(1), 53(1)(d), 52 and 232(1)(a), (e)and(d) of the Constitution.  The petitioner prayed for the consequent relief including a declaration that his rights had been violated, damages and compensation, an injunction prohibiting the respondents from disclosing his private information, an order of mandamus compelling the 1st respondent to release his medical records to a medical provider of his choice and to surrender to him all medical information regarding his family and a further order permitting them to seek medical services from an alternative provider at the 1st respondent's, costs and interest thereon. Together with the petition, the petitioner lodged a Notice of Motion dated 16th March 2015 under certificate of urgency seeking interim relief pending the hearing and determination of the petition.

3. In response to the petition, each respondent filed a replying affidavit opposing the petition. The parties also filed written submissions in support of their respective positions and after considering the matter, the learned Judge (Chemitei J.) dismissed the petition with costs.

4. Following dismissal of the petition, the respondents filed their respective bills of costs.  The learned Deputy Registrar, as Taxing Officer, considered the bills and submissions thereon and gave a consolidated ruling on 4th October 2016 which is the subject of this reference.

5. The thrust of the reference is that the matter was simple and straight forward as evidenced by the fact that the respondents filed a replying affidavit and submissions. Counsel for the petitioner submitted the respondents did not expend much time on research hence the sum of Kshs. 100,000 and Kshs. 33,333. 32 awarded as instruction and getting up fees respectively was excessive in the circumstances. Counsel further submitted that the nature of the matter, interest of the parties, general conduct of the proceedings and all relevant circumstances were such that the petitioner’s claim could not be severed. Counsel contended that the cause of action against the respondents was the same as such the bills ought to have been consolidated and one instruction fees assessed and shared equally between the respondents.

6. The petitioner’s counsel further contended that the instruction to defend the Notice of Motion dated 16th March 2015 ought not to have been awarded as it duplicated the instructions to defend the petition hence it ought to have been disallowed. Lastly, the petitioner submitted that the Taxing Officer had no discretion to award attendance costs in excess of those prescribed under the Advocates Remuneration Order, 2014 without any justification.

7. The respondents filed submissions opposing the reference. Their view was that each respondent was entitled to separate instruction fees as they were each sued separately and filed their own replying affidavits. They further submitted that Kshs. 100,000 was reasonable taking into account the nature of the subject matter. In any case, they argued, the sum of Kshs. 100,000 awarded was the lowest chargeable under the applicable Schedule and was not unreasonable. Likewise, they submitted that they were entitled to instruction fee on the Notice of Motion.

8. Before I deal with the issues raised, let me dispose of the issue of instruction fees on the Notice of Motion dated 16th March 2015. Ordinarily a party would be entitled to instructions for defending the same. However, the proceedings of 16th April 2015 show that the application was withdrawn with no order as to costs hence costs of the motion ought not to have been awarded by the Deputy Registrar.

9. Three issues fall for consideration in this reference;

(a) Whether each respondent was entitled to separate costs.

(b) Whether the instruction fees awarded were reasonable or excessive.

(c) Whether the respondents were entitled to getting up fees.

(d) Whether the respondents were entitled to attendance fees as awarded.

10. On the first issue, I accept the respondents’ argument that they are each entitled to an instruction fee as each of them was sued separately, instructed a separate advocate and filed their own defences through separate replying affidavits. The judgment shows that the learned judge considered each respondent’s submissions separately. There is nothing in the order of costs that limits instructions fees to the respondents’ globally and since the petitioner decided to sue the respondents, he must of course bear the consequence of his action.

11. I now turn to the issue of quantum of instruction fees. The parties agree on the basis upon which this court is entitled to intervene in the decision of the Deputy Registrar. This general principal applicable was summarized by Republic v Ministry of Agriculture & 2 others Ex parte Muchiri W’Njuguna & 6 Others NBI HC Misc. 621 of 2000 [2006]eKLR where it was held,inter alia,as follows:

The court cannot interfere with the taxing officer’s decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was manifestly excessive as to justify an inference that it was based on an error of principle. Of course it would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors.

12. The applicable provision for assessing costs in this matter is Schedule 6A (1)(j)(ii) of the Advocates Remuneration Order, 2014 which states as follows:

(j) To present or oppose an application for constitutional application or prerogative orders such fees as taxing officer in exercise of his discretion and taking into consideration the nature and importance of the petition or application, the complexity of the matter and the difficulty or the novelty of the question raised, the value of the subject matter and the time expended by the Advocate -

(i) Where the matter is not complex or not opposed such sum as may be reasonable but not less than Kshs. 45,000.

(ii) Where the matter is opposed and found to satisfy the criteria set out above, such sum as may be reasonable but not less than Kshs. 100,000.

13. After considering the matter, the Deputy Registrar awarded Kshs. 100,000 which is the minimum fee under the applicable Schedule as shown above. Being the minimum sum, the Deputy Registrar could not award any lesser sum. The petitioner did not give any justification to depart from strictures of the Advocates Remuneration Order, 2014. I cannot say the amount was excessive in the circumstances. I therefore decline to intervene in the assessment of the instruction fee.

14. Flowing from the instruction fee, is the getting up fee which is provided for under Paragraph 6 of Part A of the Advocates Remuneration Order which provides a minimum 1/3 of the instruction fee as getting up fee where liability is denied and issues for trial are joined in the pleadings. The respondents prepared for the hearing by drawing and filing written submissions. They were thus entitled to getting up fees.

15. The last argument refers to cost of attendances awarded to the 1st and 2nd respondents for attending court on various dates. The respondents’ claimed Kshs. 1,900 and Kshs. 3,000 which is the fee applicable for half an hour or less and one-hour attendance respectively before the judge in a contested matter under Schedule 6 Part A (7) of the Advocates Remuneration Order, 2014. I do not find that the Deputy Registrar granted sums in excess of the amount prescribed nor did the petitioner demonstrate before this court how the she erred in awarding these sums.

16. The totality of my findings is that this reference fails except that the petitioner shall be given credit for the amount awarded as instruction fees and incidental costs of the petitioner’s Notice of Motion dated 16th March 2016 which, as I have held, was withdrawn with no order as to costs.

17. As the petitioner had partially succeeded and partially failed, I order that each party shall bear their own costs.

DATED and DELIVERED at KISUMU this 11th day of July 2017.

D.S. MAJANJA

JUDGE

Mr Gachuba instructed by Onyoni Opini and Gachuba Advocates for the petitioner/applicant.

Mr K’Ouko instructed by Odhiambo Owiti and Company Advocates for the 2nd respondent.

Mr Omondi T. instructed by Mwamu and Company Advocates for the 4th respondent.