Wambia v Co-Operative Bank of Kenya [2023] KEHC 26621 (KLR)

Wambia v Co-Operative Bank of Kenya (Miscellaneous Reference Application E030 of 2023) [2023] KEHC 26621 (KLR) (13 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26621 (KLR)

Republic of Kenya

In the High Court at Busia

Miscellaneous Reference Application E030 of 2023

WM Musyoka, J

December 13, 2023

Between

Vitalis Makokha Wambia

Applicant

and

The Co-Operative Bank Of Kenya

Respondent

Ruling

1. The application for determination is dated 14th July 2023, seeking the setting aside of the taxation on 27th June 2023, of the Party and Party Bill of Costs, dated 27th June 2022; the said Bill be sent back to the drafters for correction; the said Bill be remitted to a taxing officer, other than Hon. Madowo, for taxation; and, in the alternative, that the Judge should tax the Bill afresh. The background given, on the face of the application, and in the supporting affidavit, is that the taxing officer failed to note that the total itemised costs amounted to Kshs. 210,135. 00, and not the Kshs. 358,100. 00 indicated in the Bill; and the costs awarded under items 43 and 44 were unjustified.

2. The response to the reference is by Lawrence Karanja, who swore an affidavit on 25th September 2023. The same largely denies the allegations made in the reference, and defends the decision of the taxing officer.

3. There are only 2 issues for determination. The first is whether the total amount claimed in the Bill of Costs was the Kshs. 358,100. 00, appearing on the face of the Bill; or the Kshs. 210,135. 00, alleged by the applicant. The second issue is about items 43 and 44 of the Bill.

4. On the first issue, I have taken the trouble to add up all the figures in the 62 items in the Bill of Costs, dated 27th June 2022, and filed herein on 1st July 2022, and I have arrived at a global total of Kshs. 210,135. 00. The figure of Kshs. 358,100. 00 was, therefore, wrong, whether by error or design. It would appear to have been arrived at after adding up the items at page 1 of the Bill, which amount to Kshs. 112,750. 00, twice. The taxing officer worked with a wrong figure, hence she arrived at a wrong outcome. The amount taxed off, of Kshs. 92,200. 00, should have been from Kshs. 210,135. 00, and not Kshs. 358,100. 00.

5. Regarding items 43 and 44, it is argued that the work alleged to have had been done, under the 2 items, had not been done. Item 43 is about service of the Bill, dated 27th June 2022; while item 44 is about drawing and filing an affidavit of service, for the Bill, and a taxation notice.

6. On item 43, I have carefully perused the trial record in Busia HCCA No. 13 of 2012, and I have not come across an affidavit of service, as proof that the Bill was ever served on the applicant. Service is proven by way of an affidavit of service, without which it ought to be presumed that the Bill was never served. If it was served, but no affidavit of service was filed, the respondent would still be entitled to nothing under the item for service. The figure claimed under item 43, of Kshs. 1,400. 00, ought to have been taxed off. There should be no room for a presumption that the applicant was served with the Bill, given that he filed responses to it. He could have obtained a copy of the Bill from the court file. It was the duty of the respondent to prove service, by filing an affidavit of service.

7. Related to the foregoing, is the claim and the award of costs for drawing and filing an affidavit of service and a notice of taxation, under item 44. The respondent was not entitled to costs on the drawing and filing an affidavit of service, as there is nothing in the court file to show that such affidavit was ever drawn and filed. I have, though, seen a notice of taxation, dated 25th August 2022, filed in the cause on 5th September 2022. As there is evidence that a notice of taxation was filed, it must have been drawn, and there was justification, therefore, for awarding costs for its drawing and filing. The charge of Kshs. 240. 00 was for drawing and filing both documents. There is evidence that one of the documents was drawn and filed, but there is no evidence on the other. The award cannot be split, between drawing and filing the affidavit of service, on the one hand, and the notice of taxation, on the other. The respondent was entitled to it, given that a notice of taxation was in fact drawn and filed.

8. According to the ruling of 27th June 2023, the figure taxed off was Kshs. 92,200. 00. To that figure should be added Kshs. 1,400. 00, making a total of 93,600. 00. The figure of Kshs. 93,600. 00 should be taxed off Kshs. 210,135. 00. The taxed costs should amount to Kshs. 116,535. 00. Consequently, I do hereby quash the costs taxed on 27th June 2023, at Kshs. 265,900. 00, and substitute that figure with taxed costs of Kshs. 116,535. 00. The reference, dated 14th July 2022, is disposed of in those terms. There shall be no order on costs.

DATED AND SIGNED IN CHAMBERS, AND DELIVERED BY EMAIL, AT BUSIA THIS 13TH DAY OF DECEMBER 2023. W MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.Mr. Vitalis Makokha Wambia, the applicant, in person.AdvocatesMs. Owuor, instructed by Ogejo Omboto & Kijala, Advocates for the respondent.