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|Case Number:||Miscellaneous Civil Application 132 of 2020|
|Parties:||Odhiambo Owiti & Co. Advocates v Equator Bottlers Limited|
|Date Delivered:||30 Mar 2022|
|Court:||High Court at Kisumu|
|Judge(s):||Fred Andago Ochieng|
|Citation:||Odhiambo Owiti & Co. Advocates v Equator Bottlers Limited  eKLR|
|Case Outcome:||Reference rejected|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
MISC. CIVIL APPLICATION NO. 132 OF 2020
ODHIAMBO OWITI & CO. ADVOCATES............................................APPLICANT/ADVOCATE
EQUATOR BOTTLERS LIMITED..............................................................RESPONDENT/CLIENT
Before me is a reference from taxation dated 6th 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 16th September 2020.
4. Being dissatisfied with the said Ruling, the Advocate/Applicant wrote to the taxing officer on 21st September 2020, requesting for reasons for the decision.
5. The taxing officer replied by her letter dated 25th September 2020, indicating that the reasons for ruling were contained in the Ruling dated 16th 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 16th 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 30th September, 2020.
9. Therefore, as the reference was filed on 7th 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 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
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
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  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
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 25th 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
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 30TH DAY OF MARCH 2022
FRED A. OCHIENG