Gituthi & 2 others v National Land Commission & another (Petition 5 of 2018)  KEELC 15530 (KLR) (20 December 2022) (Ruling)
Neutral citation:  KEELC 15530 (KLR)
Republic of Kenya
Petition 5 of 2018
LN Gacheru, J
December 20, 2022
Stephen Mbugua Gituthi
Eunice Njeri Nyoike
Allan Mwangi Maina
National Land Commission
Athi Water Services Board
1.The 2nd Respondent/Applicant filed an application dated 28th March, 2022 for orders:i.Spentii.Spentiii.THAT the ruling of the Deputy Registrar/ Taxing Master issued on the 14th March, 2022, in respect of items 1,2,185,270,346 and 347 in the Petitioner’s Party and Party Bill of Costs dated 4th November, 2021 be set aside.iv.THAT this Honourable Court proceeds to re-tax item Number 1, 2,185,270,346 and 347 of the Petitioner’ Party and Party Bill of Costs dated 4th November, 2021v.THAT in the alternative to prayer (4) hereinabove, the Party and Party Bill of Costs dated 4th November, 2021 be referred back for taxation of items Number 1, 2,185,270,346 and 347 of the Bill of Cost with proper directions thereof
2.The application is anchored on the GROUNDS stated on the face of the same and the Supporting Affidavit of MARTHA WANJIKU, for the 2nd Respondent. The 2nd Respondent contends that the costs awarded in items Number 1, 2,185,270,346 and 347 are unreasonably excessive, punitive and oppressive. She deponed that the taxing master erred in principle by failing to give due consideration to Schedule No. 6 of the Advocates Remuneration Order.
3.The application is opposed by the Petitioners/Respondents vide a Replying Affidavit sworn by Eric Thige Advocate for the Petitioners. He deponed that the Bill of Costs was drawn based on the work put in and the value of the subject matter. He sets out in paragraph 8 the grounds upon which they objected to the Bill of Costs and urged this Court to set aside the ruling aside. The applications were canvassed by way of written submissions.
4.The Petitioners filed their submissions in support of the application on 8th September 2022. They relied on the following authorities:a.Schedule 6A(1)(j)(ii) of the Advocates Remuneration Order which provides for Party-to-Party Costs for proceedings in the High Court for Constitutional Petitions and Prerogative orders. It states:b.On the issue that the taxing master failed to consider relevant factors in enhancing the instruction fees, the Petitioners relied on the case of Catherine Njeri Angote v. Lucy Wangari Ngugi & Another (2021) eKLR in which it was held:c.The Petitioners referred the court to comparable decisions on References that involved Constitutional and Prerogative Orders including R. v. University of Nairobi & Another Ex parte Nasibwa Wakenya Moses, in which an award of Kshs. 4,000,000/= being instruction fees in a Judicial Review case by a student against the University was upheld; Rose Wangui Mambo & 2 Others v. Limuru Country Club & 15 Others (2020) eKLR wherein the Court allowed Kshs.4,800,000/= as instruction fees in a suit between 3 Golf Club members and the Golf Club; and Muriithi Wanjau & Caesar Ngige Wanjau t/a Wanjau Advocates v. Telkom Kenya Ltd (2011) eKLR where instruction fees were set at Kshs.18,420,886.62/=.d.On the issue that the 2nd Respondent challenged the Ruling on the ground that the taxing master’s Ruling resulted in an unjustifiably high costs, the Petitioners/Applicants submitted that this challenge lacked basis. They relied on the case of Premchand Raichand Ltd and Another v. Quarry Services of East Africa Ltd and another (1972) EA 162 in which it was held:e.On the issue of the getting up fees the Petitioner/Applicants relied Schedule 6A Part 2 of the Advocates Remuneration Order which states:f.The Petitioners/Applicants submitted that the matter proceeded for trial and was opposed. They thereafter relied on the case of Nguruman Ltd v. Kenya v. Kenya Civil Aviation Authority & 3 Others (2014) eKLR in relation to getting up fees. Lenaola J (as he was then) held as follows:g.On the issue of the taxing off various items related to commissioning of Affidavits which was unopposed in the Bill of Costs, the Petitioners/Applicants relied on the case of Muri Mwaniki & Wamiti Advocates v. Berben Co. Ltd & Another (2017) eKLR, where it was held that should the taxing master required prove of items under disbursements, then she will be at liberty to ask the parties concerned to avail them. This was also held in Luka Wagana & 2 Others v. Charles Alexander Kiai & Another (2020) eKLR.h.On the issue of the taxing off fees for attendance at various meetings the Petitioners/Applicants relied on the Paragraph 7(g) of Schedule 6A of the Remuneration Order which states:i.In the case of Mwangi Keng’ara & Co. Advocates v. Invesco Assurance Co. Ltd (2021) eKLR Justice Mabeya held as follows:j.On the issue of the fees for contempt proceedings, the Petitioners/Applicants relied on the case of R. v. Kenya Medical Supplies Authority & Another (2019) eKLR, wherein the Court held as follows:k.With regard to getting up fees for the contempt proceedings, the Petitioners/Applicants further relied on the case of Hellen Waithita Kabugi(suing as the Personal Representative of the Estate of John Paul Shikuta Vs. Leonard Kamau Njuguna & Another (2018) eKLR in which the court held that such an application is sui generis for it in a way is unrelated to the primary suit and that the award of a sum for getting up was warranted.l.On the issue of unstamped receipts not being viable evidence, the Petitioners/Applicants submitted that they only paid the monies and that Zamconsult Valuers & Management Co. Ltd were the ones supposed to affix the revenue stamps as required by the Act. They relied on the case of Swalleh C. Kariuki & Another V Violet Owiso Okuyu (2021) eKLR, wherein it was held:m.This was similarly held in the case of Joseph Kimani & Another v. James Kangara Kahanya (2017) eKLR as follows:n.On the issue of the subject matter of the suit, the 2nd Respondent relied on the case of Elijah Sikona & Another v. Mara Conservancy & 5 Others Civil Case No. 37 of 2013 (2014) eKLR, wherein the Court defined a cause of action as follows:o.The 2nd Respondent submitted that this suit is a Constitutional Petition seeking Prerogative Orders. That the provisions of Schedule 6(j)(ii) of the Advocates Remuneration Order 2014 therefore apply.p.The 2nd Respondent further relied on the principles set out in the Premchand Case (Supra).q.On the issue of the value of the subject matter, the 2nd Respondent relied on the case of Joreth Ltd v. Kigano & Associates, Civil Appeal No. 66 of 1999 (2002) 1 EA 92, wherein it was held that the subject value for the purposes of taxation of the bill of costs ought to be determined from the pleadings, judgement or settlement, but if the same is not so ascertainable, the taxing officer is entitled to use his discretion to assess such instructions fees as he considers just, taking into account, amongst other matters, the nature and the importance of the cause or matters, the interests of the parties, the general conduct of the proceedings, any direction by the trial judge and all other relevant circumstances.r.On the issue of disbursements in relation to the valuation fee, the 2nd Respondent relied on the case of Gathinga Mwangi & Company Advocates v. Jane Mumbi Kiano (Nyeri HC Misc. App. No. 318 of 2013) where it was held:s.On the issue of unstamped receipts provided by the Petitioners/Applicants, the 2nd Respondent relied on Section 19(1) of the Stamp Duty Act which provides:t.On the principles for guiding review of taxation, the 2nd Respondent relied on the case of President of Republic of South Africa & Others v. Gauteng Lions Rugby Union & Another where it was held:a.Costs are awarded to a successful party to indemnify it for the expense to which it has been put through, having been unjustly compelled either to initiate or defend litigation;b.A moderating balance must be struck which affords the innocent party adequate indemnification but within reasonable grounds;c.The taxing master must strike this equitable balance correctly in the light of all the circumstances of the case;d.An overall balance between the interests of the parties should be maintainede.The taxing master should be guided by the general precepts that the fees allowed constitute reasonable remuneration for necessary work properly done;f.And the court will not interfere with a ruling made by the taxing master merely because its view differs from his or hers, but only when it is satisfied that the taxing masters views differ so materially from its own that it should be held to vitiate the ruling.u.Lastly, the 2nd Respondent relied on the case of Republic v. Minister of Agriculture ex parte W’njuguna & Others on the importance to taxation of costs by the taxing master. It was held:
5.The Court has considered the instant Reference, the Affidavits, and the rival written submissions together with the authorities cited. The singular issue for determination is, whether there are sufficient grounds to warrant this Court to interfere with the taxing officer’s Ruling dated 14th March 2022?
6.The question whether the amount was unreasonably excessive, punitive and oppressive can best be answered by the Court in Rogan-Kamper v Grosvenor  eKLR where the Court drew an inference of what constituted “reasonable” and “manifestly excessive”. The Court held:
7.It must mean that which does not outrage or jolt the mind, that which does not give rise to confrontation. But what it meant by “manifestly excessive” or “manifestly inadequate”. I consider to experience such a feeling of visible excess or inadequacy there must be a reactive impact which jars the mind with its apparent immensity or with its apparent insufficiency, a reactive impact that there is obviously to, much or too little, which requires to be set right because it is outside the ordinary proper measure, and both unfair and unequal.
8.The Court held further
9.This Court has already found hereinabove that the costs awarded based the subject matter was proper and justified. It takes cue of the voluminous nature of the pleadings and documents involved and the nature of work put in. As laid out hereinabove, this Court has the power to set aside the discretionary powers of the trial master if it is evident the award was unreasonably excessive. The 2nd Respondent has not demonstrated that the taxing master capriciously applied her discretion and arrived at an unreasonable, unjustified or excessive cost. This Court finds no reasons to disturb the award in items No. 1 & 2.
10.On item No. 185 & 270, this Court notes and appreciates that they were as a result of the application filed in the suit. No substantial basis has been laid out before this Court to warrant interference with the award. While the Court agrees with the 2nd Respondent that the process of taxation is not a mathematical error, it is imperative to note the principles for interference with the discretionary powers of the taxing master. As noted above, the value of the subject matter and the work put in, it is just to conclude that the same was reasonable. Thus this Court finds no basis for interfering with the award.
11.On item 346 & 347, which was on filing fees and disbursement. The 2nd Respondent contends that the Petitioners ought to have pleaded in the Petition. Respectfully, this Court does not agree with the said contention and that was not the main issue in the Petition. This Court notes the case of Gthinga Mwangi & Company Advocates vs Jane Mumbi , supra, as quoted by the 2nd Respondents and appreciates the sentiments of the Court that nothing prevented the Applicant therein from providing evidence to support his Bill of Costs.
12.There is no strand of evidence that the taxing master was not adequately guided. Whether additional evidence was availed or not is neither an issue that this Court has been addressed on nor is an issue for determination by this Court. While it is trite law that special damages must be specifically pleaded and proved this is in respect of the substance of a case and not on the Bill of Cost which requires prove in form of documentation. This Court cannot therefore interfere with the discretion of the taxing master.
13.Having found as hereinabove, and having considered the rival written submissions in depth, this Court finds and holds that the Notice of Motion Application dated 28th March, 2022, by the 2nd Respondent herein is not merited. The same is dismissed entirely with costs to the Petitioners herein.It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANGA THIS 20TH DAY OF DECEMBER, 2022.L. GACHERUJUDGEDelivered virtually;In the presence ofMr. Kariuki holding brief for Petitioners/RespondentsAbsent – 1st RespondentMs. Munyiva holding brief for Mulekyo 2nd Respondent/ApplicantJoel Njonjo – Court AssistantL. GACHERUJUDGE