1.Before this court are two Applications both dated 13th September, 2019 filed in the two consolidated files, both seeking order that;a.The Ruling delivered herein on August 2019 by the Honorable Learned Taxing Master, Hon. S. A. Opande striking out the Party and Party Bill of Costs dated 18th August, 2015 be set aside and/or vacated;b.The said Bill of Costs be remitted back for taxation by a different taxing officer;c.In the alternative to prayer 2 above, this honorable court be pleased to tax the said Bill of Costs;d.Costs of the Application be provided for.
2.The Applications are premised on the grounds common on the face of the application and in the Supporting Affidavits of James Nyiya both sworn on 13th September, 2019. The deponent avers that the Taxing Master erred in striking out the Applicant’s Party and Party Bill of costs dated 18th August, 2015 for want of jurisdiction notwithstanding that the said court is vested with inherent jurisdiction under the Advocates Remuneration Order. That the Taxing Master inaccurately interpreted Section 32B of the Arbitration Act, No.4 of 1995 which allows parties to among other things agree on how costs are to be assessed or determined. He added that the Taxing Master erred in law and fact by failing to appreciate that the subject of Bill of Costs had been brought before him by consent and agreement of both parties. In his view, the Taxing Master did not appreciate that the law contemplates a situation where parties can agree to have determined costs and expenses of an arbitration assessed by court. Further that the Taxing Master failed to consider that the Respondent in its submissions dated 17th July, 2017 in respect to the Applicant’s Bill of Costs admits to the jurisdiction of the court and acknowledges that the Advocates Remuneration Order, 2006 was applicable in the circumstances. He urges the court to hold that the Taxing Master erred in dismissing the Bill of Costs and prays that the Ruling of the Taxing Master be set aside and the Applicant’s Bill be taxed afresh by a different taxing officer.
3.The Respondent opposed the application vide the Grounds of Opposition dated 25th February, 2020. In summary, its case is that the reference fails to establish factual or legal basis for the grant of the orders sought, and that the Applicant has failed to satisfy this court that the Taxing Master erred in principle in assessing the costs. According to the Respondent, the reference does not lie in law, is misconceived and is otherwise an abuse of the process of court.
4.By consent of parties, the instant Application was canvassed by way of written submissions which I have read and considered.
5.In my considered view, the main issue for consideration is which part of Schedule VI of the Advocates Remuneration Order is applicable for the taxation of costs of filing an application for enforcement of an arbitral award and defending an application seeking to set aside the same award.
6.I adopt with approval the decision in the case of Evans M. Gakuu & 66 others V National Bank of Kenya Ltd & 8 others  eKLR Odunga. J Cited with approval the case of First American Bank of Kenya –vs- Shah & others Nairobi (Milimani) HCCC No. 2255 of 2000  1 EA 64, where it was held;
8.From the above provision, the jurisdiction on costs of the arbitral proceedings is solely vested in the arbitrator. However, on applications filed in court by virtue of the provisions of the Arbitration Act, the court can make a determination on the cost of such applications. I am persuaded by the decision of the court in Miscellaneous Application E017 of 2021 & Arbitration Cause E003 of 2021 (Consolidated) where it was held that;
9.That being said, in the present case, the Taxing Master in his Ruling dated 28th August, 2019 observed that the instructions fees ought not to be based on the subject matter but to be calculated as under Schedule VI Paragraph K of the Advocates Remuneration Order, 2006. However, the Applicant contends that the said paragraph is applicable for objection or defense to the objection of an arbitral award which he argues was not the case herein. Instead his submissions is that he received instructions to file an application for adoption and enforcement of the arbitral award and to equally defend an application against adoption. In support of his view, he places reliance in the case of M/S Nyaundi Tuyott & Company Advocates –vs- Tarita Development ltd (2006) eKLR in which the court held;
10.To this end,, I do agree with the Applicant that an application for adoption or to oppose adoption of an arbitral award the subject of taxation were not objections or defense to objections of the arbitral award contemplated under Paragraph K above. Similarly, I am persuaded that Schedule VI (d) of the Advocates Remuneration Order, 2006 is applicable in this instance so that the arbitral award forms the basis of calculation of the instruction fees.
11.In that regard, I fault the Taxing Masters view as far as the basis of calculating the instructions fees is concerned. As such, the Taxing Masters taxation of the Bill of Costs dated 18th August, 2015 in Misc. 882 of 2011 is set aside and the same is remitted back for taxation afresh before a different Taxing Master.
12.Each party to bear own costs of this Application.It is hereby so ordered.