REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

MISC. CIVIL APPLICATION NO. 130 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 Item 1 of the Bill of Costs.

1. The Applicant further asked the Court to re-assess the said item 1, 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. 154 of 2017.

23. 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.

24. 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.”

25. 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.”

26. 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).”

27. The Advocate/Applicant has told this Court that in Misc. Application No. 154 of 2017, the Bill of Costs filed by BRUCE ODENY ADVOCATE was claiming Kshs 91,085.00. He further said that the said Bill was taxed in the sum of Kshs 210,000/=.

28. I have perused the Bill of Costs, but I found no reference to either Kshs 417,683.84 as the sum claimed, or the sum of Kshs 210,000/= as the costs awarded.

29. In my considered opinion, it would not be right to condemn the taxing officer for arriving at an erroneous assessment, yet the Advocate/Applicant did not place before her, either of the 2 figures which he is now citing herein.

30. A reference from taxation is akin to an appeal. It is determined by assessing the impugned decision in the light of the material which was made available to the taxing officer.

31. As the Advocate/Applicant did not place before the taxing officer either the sum of Kshs 417,683.84 or Kshs 210,000/=, I find that there is no legal basis upon which this Court can hold that the learned taxing officer erred.

32. If I were to re-assess the Instruction Fees on the basis of the information which has now been provided to this Court, that would not be a decision on a reference: It would be a decision which was informed by entirely new material.

33. I therefore reject the reference, with costs to the Respondent.

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

FRED A. OCHIENG

JUDGE