1.Vide an application dated 12th April 2022, M/s Jitengemee Savings & Credit Co-operative Society Ltd, the 1st Respondent herein (the applicant) seeks a raft of prayers. Prayers (1) & (2) of the application are spent. The other prayers are that the taxing master’s ruling delivered on 30th March 2022 on the Petitioner’s/ Respondent’s Party and Party Bill of costs dated 29thJanuary 2029 be set aside in its entirety. In the alternative and without prejudice to the foregoing, the applicant prays that the award in respect of item numbers 1 and 42 (instruction fees and getting up fees respectively) be set aside. Further, the applicant prays that the said Bill of Costs be remitted to another taxing master for taxation of the said items.
2.The grounds in support of the application are that the said Bill of Costs was taxed at Kshs. 863,681,87; that the Taxing Master committed an error of principle by failing to consider that the applicant was exonerated in the judgment delivered on 25th January 2019, so, it was not liable to pay costs. Additionally, the applicant states that the taxing master committed an error of principle by applying schedule 6 (1) of the 2014 Remuneration Order when calculating items (1) & (42) instead of applying Schedule 6 (j) of the 2014 Remuneration Order. Further, the applicant contends that since the Petitioner was challenging alleged violation of rights, the Petition did not qualify to be an election Petition within the meaning of the Elections Act.1 Lastly, the applicant contends that the costs awarded are manifestly excessive.
3.The Petitioner filed a Preliminary Objection dated 25th April 2022 stating that the application is malicious, misconceived, lacking merit and an abuse of court process and that the application offends Order 9 Rule 9 of the Civil Procedure Rules, 2010.
4.In his written submissions, the applicant’s counsel argued that the Petitioner’s/Respondent’s Preliminary Objection is meritless because the applicants’ advocates are properly on record; that the judgment exonerated the applicant and that the mere fact that the court judgment did not specify against whom the costs were imposed does not make the applicant liable. He argued that the Taxing Master had a duty to read the judgment holistically to determine which party against whom the costs had been awarded. He cited section 27 of the Civil Procedure Act2 and Jasbir Singh Rai & 3 others v Tarlocham Singh Rai & 4 others3 in support of the proposition that costs follow the event. He also cited Vinod Seth v Davinder Bajaj4in support of the proposition that costs are not meant to punish the defeated party. He cited a passage from Halsbury’s Laws of England5in support of the proposition that the court has discretion to determine who pays costs and urged the court to allow the reference.
5.He cited Kagwimi Kangethe & Company advocates v O-lerai Nurseries Ltd6 which defined an error of principle as where costs are so manifestly excessive as to justify an inference that the Taxing Master acted on erroneous principles. He argued that before the court was a constitutional Petition and not an election Petitioner as was held by the Taxing Master, hence the Taxing Master erred in applying provisions of Schedule 6 paragraph (i) of the Advocates Remuneration Order which applies to election Petitions as opposed to Schedule 6 Paragraph (j) which applies to constitutional Petitions.
6.Additionally, counsel submitted that the Taxing Master committed an error of principle by awarding manifestly excessive costs. He cited Schedule 6 (j) and argued that the Taxing Master awarded Kshs. 500,000/= as instruction fees on the erroneous assumption that before him was an election Petition which was not the case. He argued that Schedule 6 (1) (i) of the Advocates Remuneration Order provides for a sum of Kshs. 100,000/=.
7.The Petitioner/Respondent did not file submissions. On 5th May 2022 when I issued directions on filing submissions, the Petitioner/ Respondent was absent. I directed that she be served. On 26th May 2022 when the matter came up before me virtually to confirm compliance, again, there was no appearance for the Petitioner/Respondent. Counsel for the applicant stated that he had served the Respondent, so, I reserved the matter for ruling. However, upon retiring to write the ruling, I went through the entire file and I did not trace evidence of service. Nevertheless, I proceeded to write the ruling without the benefit of reading the Petitioner’s/Respondent’s submissions.
8.The first ground mounted by the applicant is that in the court in the judgment dated 25th January 2019 exonerated the applicant, so the Taxing Master erred by awarding costs against the applicant. This argument is not supported by the judgment. The clause imposing costs reads “I award to the Petitioner the costs of the Petition.” The learned judge did not specifically state that the costs were not to be paid by one party. The question is whether the applicant is trying to assign a meaning to the above sentence which is not supported by the nomenclature deployed by the learned judge.
9.In trying to search for the meaning of the above short paragraph, and indeed the judgment on the question of costs, useful guidance can be obtained from the Southern African case of Firestone South Africa (Pty) Ltd v Genticuro AG7 in which the court made some general observations about the rules for interpreting a court's judgment or order. It stated: -
10.The court’s directions in a judgment are to be found in the order and not elsewhere. If the meaning of an order is clear and unambiguous, (like paragraph 37 of the judgment is), it is decisive, and it cannot be restricted or extended by adding anything else. The applicant’s counsel is inviting this court to assign a meaning which is not supported by the court’s judgment. If at all the applicant did not understand the judgment, the right thing to do would have been to move the issuing court for clarification. It is impermissible to excessively strain words or a sentence in a court judgment so as to ascribe to it a meaning it does not bear.
11.I now proceed to address the application before me on merit. It is an established position that before interfering with a decision of a Taxing Master, the court must be satisfied that the Taxing Master’s ruling was clearly wrong, as opposed to the court being clearly satisfied that the Taxing Master was wrong. The court will not interfere with the decision of the taxing master in every case where its view of the matter in dispute differs from that of the Taxing Master. The court only interferes when it is satisfied that the Taxing Master’s view of the matter differs so materially from its own that it should be held to vitiate the ruling.8 When a court reviews a taxation it is vested with the power to exercise the wider degree of supervision.9 This means: -
12.It is accepted that the Taxing Master is required to consider the time taken, the complexity of the matter, the nature of the subject-matter in dispute, the amount in dispute and any other factors he or she considers relevant. The definitive question is whether the Taxing Master struck this equitable balance correctly in the light of all the circumstances of this particular case. This requires this court to be satisfied that the Taxing Master was clearly wrong before interfering with the decision.11The quantum of such costs is to be what was reasonable fees and must be within the remuneration order. The determination of such quantum is determined by the Taxing Master and is an exercise of judicial power guided by the applicable principles. However, the Taxing Master's discretion will not be interfered with ‘unless it is found that he/she has not exercised his/her discretion properly, as for example, when he/she has been actuated by some improper motive, or has not applied his/her mind to the matter, or has disregarded factors or principles which were proper for him/her to consider, or considered others which it was improper for him/her to consider, or acted upon wrong principles or wrongly interpreted rules of law, or gave a ruling which no reasonable man would have given.'12
13.In principle, costs are awarded, having regard to such factors as:- (a) the difficulty and complexity of the issues; (b) the length of the trial; (c) value of the subject matter and (d) other factors which may affect the fairness of an award of costs. The law obligates the Taxing Master to take into account these principles. As was held by the Ugandan Supreme court: -13
14.The court in Republic v Ministry of Agriculture & 2 others Ex parte Muchiri W’njuguna & 6 Others14 stated :-
15.Perhaps I should add that the Taxing Master is enjoined to adopt a flexible and sensible approach to the task of striking the balance while taking into account the particular features of the case. The discretion vested in Taxing Master is to allow fees, costs, charges and expenses as appears to him to have been necessary or proper, and not those which may objectively attain such qualities, and that such opinion must relate to fees and all costs reasonably incurred, but also imports a value judgment as to what is reasonable. The discretion to decide is given to the Taxing Master and not to this court. This discretion must be exercised judicially in the sense that the Taxing Master must act reasonably, justly and on the basis of sound principles with due regard to the circumstances of the case.
16.As was held in Phemchand Raichand Ltd Another v Quarry services of East Africa Ltd and Another15 thus: -
17.The court can interfere if it is proved that the amount taxed was manifestly excessive or low, or if there is proof that the taxing officer followed a wrong principle in reaching his decision. As was held in Joreth Limited v Kigano & Associates (supra) andFirst American Bank of Kenya v Shah and Others17 “instruction fees is static such that it does not depend on such circumstances as the client is suggesting.” Further, the value of the subject matter of a suit, for the purposes of taxation of a bill of costs ought to be determined from the pleadings, judgment or settlement (if such be the case), but if the same is not ascertainable, the Taxing Master is entitled to use his discretion to assess such instruction fee as he considers just, taking into account, amongst other matters, the nature and importance of the cause or matter, the interest of the parties, the general conduct of the proceedings, any directions by the trial Judge and all other relevant circumstance.
18.The applicant’s argument is that the Taxing Master treated the matter before him as an Election Petition as opposed to a constitutional Petition. This argument as I understand it is premised on the following statement in the impugned ruling: - “…This item is therefore guided by Schedule 6 (i) of the 2014 Remuneration Order as the matter was opposed. This item is taxed at Kshs. 500,000/= with Kshs. 1,000,000/= being taxed off.” The relevant provisions of i.e. 6(i) and 6 (j) of the 2014 Remuneration Order are reproduced below: -
19.The amount prescribed for Election Petitions is such sum as may be reasonable but not less than Kshs. 500,000. On the other hand, the amounts prescribed for constitutional Petitions under Schedule 6 (j) are: - (i) where the matter is not complex or opposed such sum as may be reasonable but not less than 45,000, and (ii) where the matter is opposed and found to satisfy the criteria set out above, such sum as may reasonable but not less than 100,000. The learned Taxing Master in arriving at the fees on Item No. 1 in his ruling stated: -
20.The above excerpt is the ratio for the decision. It leaves no doubt that the learned Taxing Master was acutely aware that before him was a suit seeking prerogative orders which falls under paragraph 6 (f) above. He was evidently aware of the nature of the dispute before him and the prayers sought. To jump to the last sentence of the above paragraph and isolate the letter (i) and ignore the context in which the sentence is located is to miss the point and to look for the easier meaning which is not supported by the context.
21.As was held in the earlier cited case of Firestone South Africa (Pty) Ltd v Genticuro AG18 the basic principles applicable to the construction of documents also apply to the construction of a court's judgment or orders. As the Supreme Court of India held in Reserve Bank of India vs. Peerless General Finance and Investment Co. Ltd. and others19stated: -
22.The often-quoted dissenting judgment of Schreiner JA, eloquently articulates the importance of context in statutory interpretation: -
23.The Supreme Court of Appeal of South Africa in Natal Joint Municipal Pension Funds v Endumeni Municipality21 acknowledged the interpretation that gives regard to the manifest purpose and contextual approach as the proper and modern approach to statutory interpretation. Wallis JA pointed out that “in resolving a problem, where the language of a statute leads to ambiguity the apparent purpose of the provision and the context in which it occurs will be important guides to the correct interpretation.”22 These statements are true of interpretation of judgments/rulings. A reading of the earlier reproduced excerpt clearly shows the context within which the award of Kshs. 500,000/= was arrived at. It leaves no doubt that the Taxing Mater was acutely aware that before him was a Constitutional Petition. I decline the invitation to ignore context while interpreting the ruling and import a meaning not supported by the context.
24.A reading of the impugned ruling shows that Taxing Master properly arrived at the instruction fees guided by the applicable provisions of the Remuneration order and that he did not depart from these established principles. The Taxing Master considered all the material before him and properly exercised his discretion in arriving at his decision both on the instruction fees and on the getting up fees. He was not only alive to the law and principles governing taxation, but also, he took into account the applicable principles and fully understood the task before him.
25.On the whole, the applicant has failed to demonstrate that the Taxing Master misdirected himself or improperly exercised his discretion or arrived at inordinately high or unreasonable awards to warrant this court’s intervention. In view of my conclusions arrived at above, it is my finding that the application dated 12th April 2022 fails. The said application is dismissed with no orders as to costs. Orders accordingly
SIGNED AND DATED AT MOMBASA THIS 19TH__ DAY OF SEPTEMBER__ 2022JOHN M. MATIVOJUDGESIGNED, DATED AND DELIVERED VIRTUALLY AT MOMBASA THIS 21ST__ DAY OF SEPTEMBER__ 2022OLGA SEWEJUDGE4