Lubullelah & Associates Advocates v Gilbi Construction Company Limited (Miscellaneous Application E010 of 2021)  KEHC 15953 (KLR) (Constitutional and Human Rights) (25 November 2022) (Ruling)
Neutral citation:  KEHC 15953 (KLR)
Republic of Kenya
Miscellaneous Application E010 of 2021
M Thande, J
November 25, 2022
Lubullelah & Associates Advocates
Gilbi Construction Company Limited
1.Before me for consideration is a reference by way of chamber summons, dated 17.3.22 (the Reference) in which the Applicant seeks the following orders:
2.The Reference is premised on the grounds that the Advocate/Applicant is aggrieved by the Ruling of 1.3.22 (the ruling) in respect of his advocate-client bill of costs dated 25.6.21 specifically the assessment of the instruction fees and the consequential total.
3.The bill of costs relates to the Advocate/Applicant’s representation of the Client/Respondent in Constitutional Petition No. 585 of 2014. The Advocate/Applicant stated that the filing of the notice of objection was delayed by 2 days and now seeks enlargement of time in respect thereof so that the challenge on the assessment on instruction fees may be determined on merit.
4.The Advocate/Applicant further averred that the taxing officer erred by awarding the basic instruction fees and failed to take into account and consider all relevant factors for increasing the basic instruction fees and the principles set out in the case of Ramesh Naran Patel v Attorney General & Another  eKLR. The Advocate/Applicant further faulted the taxing officer for disregarding the Advocate/Applicant’s submissions and abdicated her judicial duty to consider the said factors and exercise her discretion to increase the instruction fees.
5.In his replying affidavit sworn on 18.5.22, Harish Gopal Vekaria, the managing director of the Client/Respondent stated that the taxing officer in her ruling taxed the bill of costs at Kshs. 353,767.79. Further that the assessment of instruction fees is a matter of discretion and that the taxing officer did not exercise her discretion on wrong judicial principles. He further stated that the Taxing officer, being guided by Schedule 6(1) (j)(ii) of the Advocates Remuneration Order (ARO) and decided cases, found the instruction fees of Kshs. 100,000/= to be reasonable. The Client/Respondent further asserted that the taxing officer considered all factors including the care and labour required by the advocate, the number and length of papers to be perused, the nature and importance of the matter, the value of the subject matter where ascertainable, interest of the parties as well as the complexity and novelty of the matter. In light of this, the Client/Respondent was of the view that the Application lacks merit and urged that that the same be dismissed with costs.
6.The Court has considered the written submissions filed by the parties together with the authorities cited. In spite of having been served Advocate/Applicant did not attend Court to highlight his submissions.
7.It was submitted that the taxing officer committed a grave error in principle, by her decision that the Advocate/Applicant was only entitled to the basic minimum instruction fees plus 50%, without taking into account trite factors for its increase. The Advocate/Applicant submitted that the petition in question was 74 pages long and was complex and time consuming. Further that the response filed by the Advocate/Applicant was over 403 pages long and in 2 volumes, thus demonstrating the complexity of the matter. Further that the matter involved a mixture of private/contractual/employment rights in the guise of a constitutional petition and was accordingly dismissed. Also considered, was inter alia the application of the bill of rights to private member institutions. It was further submitted that the value of the subject matter was clearly discernible from the pecuniary reliefs sought in the petition, the total value of which exceeded Kshs. 5.3 million. Additionally, the responsibility placed on the Advocate/Applicant was fairly arduous given that they were able to simplify the intricate and twisted plot narrated in the petition therein resulting in its dismissal. Further that the conduct of the proceedings was professional, efficient and effective. The foregoing factors taken together warranted an increase of the minimum instruction fees.
8.For the Client/Respondent, it was submitted that the claim in the petition was not a liquidated claim but declaratory in nature. Further that the matter did not proceed to trial as the petition was dismissed pursuant to a preliminary objection. It is the Client/Respondent’s further contention that increase of instruction fees is not an automatic right and that a taxing officer must be guided by rules and principles of law, according to what is fair in the circumstances. Additionally, the Client/Respondent submitted that the taxing officer explained her decision in detail using authorities and that the Advocate/Applicant has not demonstrated how the taxing officer improperly exercised her discretion. It was further submitted that there was no exceptional dispatch or complexity in the matter and the Advocate/Applicant was merely discharging the duty required of an advocate upon instructions by a client.
9.The record shows that the matter herein arises out of a bill of costs filed by the Advocate/Applicant in respect of Constitutional Petition No. 585 of 2014, Isaac Aluoch Polo Aluochier v Kenya National Commission of Human Rights & 2 Others. The Client/Respondent was the 2nd respondent therein and was represented by the Advocate/Applicant.
10.The remuneration of an advocate of the High Court by his client in constitutional matters and the taxation thereof is provided for in Paragraph 1(j) of Schedule 6 of the ARO as follows:
11.As regards advocate and client costs, Schedule 6 provides that the instruction fees shall be the fees prescribed above, increased by 50%. Thus, the instruction fees in a contested constitutional matter, such as the one in respect of which the bill of costs in question was taxed, is Kshs. 100,000/=, increased by 50%. The instruction fees stipulated, is the minimum fees.
12.It is trite law that a taxing officer has the discretion to increase instruction fees. That discretion must however be guided by known principles. This was the holding of Ojwang, J. (as he then was) in the case of Republic v Minister for Agriculture & 2 others Ex-parte Samuel Muchiri W’Njuguna & 6 others  eKLR where the learned Judge stated:
13.The Advocate/Applicant submitted that the taxing officer was at fault in failing to apply the principles for increase of fees set out in the case of Ramesh Naran Patel v Attorney General & Another  eKLR. In that case, Emukule, J. stated:
14.In the present case, the Advocate/Applicant is irked by failure by the taxing officer to increase the instruction fees from the minimum of Kshs. 100,000/= plus 50%. In her ruling, the taxing officer found that the amount of Kshs. 500,000/= sought by the Advocate/Applicant was excessive. She stated:
15.The learned taxing officer went on to state:
16.Courts have often been called upon to consider the issue of increase of instruction fees. In the case of First American Bank of Kenya Ltd v Gulab P. Shah & 2 others  eKLR, Ringera, J. (as he then was) had this to say on the subject:
17.I have considered the case of Benson Ambuti Adega & 2 others v Kibos Sugar and Allied Industries Ltd & 4 others; Kenya Union of Sugar Plantation and Allied Workers (Interested Party)  eKLR cited by the Advocate/Applicant where Ombwayo, J. stated that:
18.It is noted that the Client/Respondent through the Advocate/Applicant opposed the petition in question, on the ground that the court lacked jurisdiction, given that there was a clear procedure for the redress of the petitioner’s claim which ought to have been strictly followed. Further that the amount claimed by the petitioner therein was the subject of a pending dispute. The court agreed with this position and proceeded to dismiss the petition.
19.After a careful analysis of the judgement I am in agreement with the taxing officer that there is nothing that the Advocate/Applicant did that was above the workaday chores of legal practitioners. The responsibility entrusted to counsel in the petition was quite ordinary. It called for normal diligence. Indeed, there is nothing novel about challenging the jurisdiction of the constitutional court on grounds that a remedy is available in ordinary civil law. Further, the challenge to the petition on the grounds set out by the Advocate/Applicant was not, in the words of Ojwang, J. (as he then was), so greatly time-consuming, so research-involving, so skill-engaging as to justify an enhanced award of “instruction fees”. (See Samuel Muchiri W’Njuguna case (supra). In view of the foregoing, I am of the view that there was nothing in the petition in question that would have led the taxing officer to increase the instruction fees.
20.It is well settled that this Court should not interfere with the exercise of the taxing officer on the question of quantum. In the case of Nyangito & Co. Advocates v Doinyo Lessos Creameries Ltd  eKLR, Odunga, J. (as he then was) had this to say concerning the interference of the exercise of discretion by a taxing officer:
21.Indeed, Courts have taken the position that the award of the taxing master may only be interfered if it thinks the award so high or so low as to amount to an injustice to one party or the other. In the case of Samuel Muchiri W’Njuguna (supra), Ojwang, J (as he then) cited the following words of Spry, V-P. in Premchand Raichand Ltd & Another v. Quarry Services of East Africa Ltd & Another  E.A. 162:
22.Further the Court of Appeal in Joreth Limited v Kigano & Associates  eKLR cautioned against interference with the assessment of costs by the taxing master unless on a matter of principle. The Court had this to say:
23.In the present case, the taxing officer after considering the aforesaid well settled principles on increase of instruction fees was of the view that there was nothing in the petition to warrant an enhancement of the minimum instruction fees provided for in the ARO. I agree.
24.Having considered the foregoing, I do find that the taxing officer properly exercised her discretion in awarding the minimum instruction fee and then added 50% as provided for in the ARO. In this regard, I follow the holding by Odunga, J. (as he then was) in the Nyangito case (supra) and opt not to interfere with the decision of the taxing master in questions solely of quantum as that is an area where the taxing master is more experienced and therefore more apt to the job.
25.The foregoing analysis leads me to draw the conclusion that the Advocate/Applicant has not laid sufficient basis upon which the Court can interfere with the decision of the taxing master. In the result, this Reference dated 17.3.22 is found to be lacking in merit and the same is hereby dismissed. The Client/Respondent shall have costs.
DATED, SIGNED AND DELIVERED IN NAIROBI THIS 25TH DAY OF NOVEMBER 2022M. THANDEJUDGEIn the presence of: -................for the Advocate/Applicant................for the Client/Respondent................ **Court Assistant