REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

MISC. CIVIL APPLICATION NO. 132 OF 2020

ODHIAMBO OWITI & CO. ADVOCATES............................................APPLICANT/ADVOCATE

-VERSUS-

EQUATOR BOTTLERS LIMITED..............................................................RESPONDENT/CLIENT

RULING

Before me is a reference from taxation dated 6^th October 2020. The Advocate/Applicant has asked the Court to set aside the taxing officer’s decision on the Items 1 and 2 of the Bill of Costs.

1. The Applicant further asked the Court to re-assess the said items 1 and 2, so that the costs be awarded as drawn in the Bill of Costs.

2. Finally, the Applicant asked the Court to award them the costs of the reference.

3. The Ruling by the learned taxing officer is dated 16^th September 2020.

4. Being dissatisfied with the said Ruling, the Advocate/Applicant wrote to the taxing officer on 21^st September 2020, requesting for reasons for the decision.

5. The taxing officer replied by her letter dated 25^th September 2020, indicating that the reasons for ruling were contained in the Ruling dated 16^th September 2020.

6. Pursuant to Paragraph 11 (2) of the Advocates Remuneration Order;

“(1) Should any party object to the

 decision of the taxing officer, he

 may within fourteen days after

 the decision give notice in writing

 to the taxing officer of the items

 of taxation to which he objects.

 (2) The taxing officer shall forthwith

 record and forward to the Objector

 the reasons for his decision on

 those items and the Objector may

 within fourteen days from the

 receipt of the reasons apply to a

 Judge by chamber summons, which

 shall be served on all the parties

 concerned, setting out the grounds

 of his objection.”

7. It was the Respondent’s contention that the Applicant ought to have filed the reference within 14 days from 16^th September 2020. The basis for that contention was that the reasons for the Ruling made by the taxing officer were contained within the said Ruling.

8. By its calculations, the Respondent submitted that the reference ought to have been filed by 30^th September, 2020.

9. Therefore, as the reference was filed on 7^th October 2020, the Respondent submitted that it was incompetent.

10. The Applicant’s understanding was that the reference was filed within the prescribed period.

11. In the case of EVANS THIGA GATURU Vs KENYA COMMERCIAL BANK LTD [2012]eKLR made the point that when a taxing officer had delivered a comprehensive ruling, there would be no need to ask him to furnish fresh reasons thereafter. The learned Judge said that;

“In such circumstances, it would be

fool hardy to expect the taxing officer

to redraft another “ruling” containing

reasons.”

12. I am in full agreement with my learned brother, that when the ruling delivered by the taxing officer, already contained reasons, there would be no need to seek further reasons.

13. However, I acknowledge and appreciate that the Court’s opinion is varied on the interpretation of paragraph 11 of the Advocates Remuneration Order.

14. In PAUL GICHERU T/A GICHERU & CO. ADVOCATES Vs KARGUA (K) CONSTRUCTION CO. LTD. HCMCA NO. 124 OF 2007 (at Eldoret), Mohamed Ibrahim J. (as he then was), expressed himself thus;

“Under rule 11 (2) of the Advocates

Remuneration Order, the taxing

officer was required to record and

forward to the objector the reasons

for his/her decision on items 1 and

2.

This is a mandatory requirement, as

the word used is “shall”. It is only

after receipt of these reasons that

an objector may within another

fourteen (14) days of receipt of the

reasons, that he can file the

application raising his objections

before a judge.”

15. The learned Judge explained that that;

“……. if the ruling is detailed and

answers the inquiry, it is arguable

that it would be superfluous for

the taxing officer to give other

reasons or repeat himself.”

16. Nonetheless, Ibrahim J. was the following firm legal position;

“In any event, the Court must apply

the law as it is, as there is no room

for any other interpretation or need

to use any other method of

interpretation than the ‘Golden Rule’

to meet the ends of justice.”

17. In my understanding, the Judges who have held that there was no need to ask for reasons when reasons were contained in the ruling of the taxing officer, were fully aware of the literal wording of the statutory provision. The said Judges rationalized, as I also did, that a ritualistic observance of the express wording of the statute was un-necessary.

18. I still reiterate that position. With utmost respect, I find myself unable to subscribe to the school of thought that it was fatally premature to lodge a reference from taxation before asking the taxing officer to give his reasons, even when the ruling obviously contains the reasons for such ruling.

19. As L. Njuguna J. held, in the case of NYAMOGO & NYAMOGO ADVOCATES Vs KENYA PIPELINE COMPANY LIMITED [2018] eKLR;

“There is no magic in the act of

requesting for reasons, and it

would not serve a different

purpose to ask for reasons when

the same are contained in the

ruling.”

20. Nonetheless, after further reflection on my part, I have also come to the conclusion that it would be prejudicial to condemn a party who followed the letter of the law, by seeking for reasons from the taxing officer when the ruling in issue contained reasons. In other words, whilst the request might be un-necessary, it ought not to lead to the striking out of the reference.

21. Accordingly, I find that in this case, time begun running from 25^th September 2020, when the learned taxing officer responded to the Applicant’s request for reasons. In the result, the reference was filed within the stipulated time-span.

Pleadings or Application?

22. It is common ground that the proceedings before me arose after the Advocate/Applicant had represented the Client/   Respondent in a Miscellaneous Application No. 149 of 2017.

23. In that Misc. Application, the Law Firm of BRUCE ODENY & CO. ADVOCATES had filed its Bill of Costs against their erstwhile client, EQUATOR BOTTLERS LIMITED.

24. The Advocate/Applicant went ahead to submit as follows;

  “Schedule 6 (1) (b) clearly provides that

  where the subject matter can be

  determined from the pleadings,

  judgement and/or settlement, then the

  taxing master ought to use that figure

  in the taxation.”

25. According to the Applicant, the value of the subject matter was not the sum of Kshs 75,000/=, which was the taxed costs. The Applicant’s position is that the Value of the subject matter was the sum which law firm of Bruce Odeny & Co. Advocates had claimed in their Bill of Costs.

26. In GEORGE ARUNGA SINO T/A JONE BROOKS CONSULTANTS LTD. Vs PATRICK J.O. & GEOFREY D.O. YOGO & CO. ADVOCATES, CIVIL APPEAL NO. 35 OF 2007, the Court of Appeal dealt with a situation wherein there was an argument the matter of taxation, which was before the Deputy Registrar had not been originated by suit.

27. The learned Judges of Appeal noted that pursuant to Section 2 of the Civil Procedure Act;

“Suit means all Civil Proceedings  commenced in any manner prescribed.”

28. They then proceeded thus;

  “As to taxation, Schedule VI (1) (a)

  of the Advocates (Remuneration)

  (Amendment) Order, 1997, which

  was in place at the relevant time

  provides for ‘costs of proceedings

  in the High Court’ and states:-

  ‘(a) To sue in any proceedings

   whether commenced by

   plaint, petition, originating

   summons or notice of motion

   in which ……..’

  ………

  These provisions, both the definition

  of suit in Section 2 (supra) and parts

  of the remuneration order we have

  reproduced above, do persuade us

  and we are persuaded that matters

  commenced by way of a notice of

  motion, as the matter before us was,

  is a law suit. We thus cannot accept

  Mr. Mwamu’s contention that what was

  before the taxing master of the High

  Court was not a suit.”

29. The learned Judges of Appeal were emphatic that;

“The matter before the court fitted

the definition of a suit and cannot

be relegated into any matter under

Schedule VI (1) (l).”

30. In this instance, the taxing officer had not explicitly held that the proceedings in respect to which the Advocate/ Client Bill of Costs was filed in Misc. Application No. 159 of 2017, was an application; as opposed to a suit.

31. Secondly, the Advocate/Applicant herein cited in the Item No. 1 that the Instruction Fee he was claiming was Kshs 75,000/=, which was described as follows;

“Instructions to defend the Respondent

in KISUMU HC MISCELLANEOUS

APPLICATION NO. 149 OF 2017 BRUCE

ODENY & COMPANY ADVOCATES Vs

EQUATOR BOTTLERS CO. LIMITED, in

the matter of taxation of the Applicant’s

Bill of Costs and which Bill was taxed at

Kshs 75,000.00.”

32. It is the Advocate/Applicant who cited the figure of Kshs 75,000/=.

33. In my considered view, the conscious decision made by the Advocate/Applicant, to cite the figure of Kshs 75,000/= must have been intended to provide a guide to the taxing officer, regarding the decision made in the matter in which the said Advocate/Applicant had represented the Client/ Respondent herein.

34. In the circumstances, it does occur to me that the claim of Kshs 75,000/= as instruction fees, was very steep.

35. The Bill of Costs cited the sum of Kshs 75,000/=; therefore that is the sum which ought to have guided the taxing officer, as the value of the subject matter.

36. I am persuaded that a claim for Kshs 75,000/= as instructions fees was unjustifiable in the circumstances.

37. I find that the sums awarded by the taxing officer were reasonable, and I find no justification for interfering with her discretion.

38. Accordingly, I reject the reference. As costs follow the event, the Advocate/Applicant will pay to the Client/ Respondent, the costs of the reference.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 30^TH DAY OF MARCH 2022

FRED A. OCHIENG

JUDGE