Zala v Singh and Others (Civil Appeal No. 20 of 1944) [1946] EACA 76 (1 January 1946)

## APPELLATE CIVIL

## Before BOURKE, J.

G. P. ZALA and P. P. ZALA (carrying on business under the firm name or style of Zala Brothers), Appellants (Original Defendants) $\mathcal{L}(\mathcal{M})\subset \mathcal{M}(\mathcal{M})$

JIWAN SINGH, UTTAM SINGH, ARJAN SINGH and BALWANT SINGH (carrying on business under the firm name or style of Nyanza Engineering Works), Respondents (Original Plaintiffs)

## Civil Appeal No. 20 of 1944

Bill of costs—Large sum claimed for "instructions"—Simple case—Taxation— Large sum allowed—Appeal against taxation—Wrong principle applied.

The plaintiffs obtained judgment in default of appearance against the defendants for Sh. 700. On appeal the judgment was reversed. Whereupon the defendants' Advocate submitted a bill of costs claiming, inter alia, for "instructions to appeal" Sh. 2,500. On taxation the amount was reduced to Sh. 1,700. The plaintiffs appealed on the ground that the figure allowed by the taxing officer was extravagant.

Held (7-10-46).—That in allowing such a large sum for such a simple case the taxing officer must have acted upon a wrong principle.

Appeal allowed and bill of costs remitted to taxing officer for re-taxing.

Cases referred to: Shivji Karson Patel v. Shivji Jetha and another 21 K. L. R. 27; Abdallah bin Ali v. Mohamed bin Ahmed (Civil Appeal No. 20/43 unreported); Hasham Kara v. Abdul Mohamed Hussein Karmali (Civil Case No. 167/45 reported in this volume at $p.$ 1).

Nazareth for the Appellants.

Khanna for the Respondents.

ORDER.—This matter comes before me under Rule 7 of the Rules of Court upon an objection to the *quantum* allowed by the Taxing Officer in respect of the item "Instructions to appeal" in a bill of costs. It is said that the Taxing Officer fixed an altogether extravagant figure, misapprehended the principles involved, and exercised his discretion unjudicially and without regard to the facts and circumstances he was bound to take into consideration under the relevant part of the first schedule to the Rules.

The proceedings in question were an appeal from a judgment in default of appearance given by the Magistrate's Court at Kisumu. The amount involved in the substantive action—a simple claim on the face of it—is Sh. 700. I happened to determine the appeal and the case as a result was restored to the list of the Lower Court for trial. The questions raised on the appeal were on points of procedure with a view to settling whether the Magistrate was entitled to give the decree he did. I am surprised to find it stated in the bill of costs in the item under review that the appeal was of "great complexity"; it was nothing of the sort. For the instructions to appeal the sum claimed was Sh. 2,500 and this was cut to Sh. 1,700 by the Taxing Officer. The total amount passed on the bill of costs was Sh. 2,188, more than three times the amount put in claim by the suit lodged in the Magistrate's Court, and the disputed item for "Instructions" is nearly two and a half times that amount. A Judge is naturally very slow to interfere in a matter of this kind and it is not necessary for me to repeat what has already

been fully expounded in C. A. No. 8 of 1942 (1944) 21 K. L. R. 27; C. A. No. 20 of 1943 (apparently unreported); and C. C. 167 of 1945\* (unreported) in which the learned Judge after directing himself as to the proper approach to the question where the quantum was in issue concluded that "The amount claimed in this case for 'instructions' seems to me to be extravagant and in allowing such a large sum the Registrar must have acted on a wrong principle". In that case the instructions were in connexion with preparation of a defence to a claim for Sh. 1,840 and Sh. 1,200 was the sum submitted for taxation of which Sh. 1,000 were allowed and reviewed on objection.

The matter should never have been put forward before the Taxing Officer as being one of "great complexity" as, judging by his notes upon the record, it evidently was. If £85 is to be regarded as a fair and usual figure in a case of this kind I can only express my astonishment. To my mind this is plainly one of those exceptional cases in which the Court or Judge is justified in concluding that in arriving at such a large sum the Taxing Officer must have acted upon a wrong principle. I cannot believe that sufficient regard was paid to the requirements set forth in the relevant proviso to be found in the first schedule. I remit the bill of costs back to the Taxing Officer with a direction to re-tax the disputed. item giving careful attention to the principles enunciated in the said proviso and taking cognizance of the fact that it is erroneous to describe the proceedings on appeal, interesting though they were on a technical point of procedure, as being of "great complexity".

The appeal is allowed.

Reported in this volume at page 1.