Submissions of the Parties
4.The ex parte applicant filed his submissions dated 19/01/2022 on the same date while the respondent filed its submissions on 15/02/2022.
5.The ex parte applicant submitted that the taxing officer committed an error of principle by assessing the instruction fees at Kshs. 200,000/= as she failed to appreciate the nature and complexity of the matter. The applicant also submitted that the taxing officer also erred in taxing off items 52, 53, 71, 72, 76, 78 by holding that the length of a folio is equivalent to a page contrary to paragraph 17 of the Advocates Remuneration Order which provides that a folio is equivalent to 100 words.
6.It was theex parte applicant’s submissions that the taxing officer taxed off item No’s 58 and 59 by failing to appreciate that these items were not similar to items No. 56 and 57 and therefore not a repetition. That the taxing officer taxed off item No. 96 and failed to consider that the said item was based under paragraph 7(b) of Schedule 6(A)(1) of the Advocates Remuneration Order. The applicant also expressed grievance at the disallowance of item Nos 106 and 109 which were costs incurred in swearing the verifying affidavit of the applicant.
7.In support of his arguments the applicant relied on the cases of Premchand Raichand Ltd and another v Quarry Services of East Africa Ltd and others (No 3)  EA 162, First American Bank of Kenya v Shah and others  1 EA 64, R v The Minister of Agriculture ex parte Samuel Muchiri W’Njuguna & others  1 EA 359 and Republic v Kenyatta University & another ex parte Wellington Kihato Wamburu  eKLR.
8.The applicant submitted that the taxing officer failed to consider the authorities presented to it where in similar matters the court assessed instruction fees at a higher figure than what was awarded in this matter. He concluded his submissions by stating that the reduction by the taxing officer was far too high and has resulted in an injustice and therefore sought that the court assesses the instruction fees as drawn.
9.The respondent in its submissions stated that the instruction fees was fairly assessed at Kshs. 200,000/= as the matter was not complicated and neither did it raise any complex matters of law. It also submitted that the Kshs. 200,000/= met the threshold for fair remuneration as was held in the case of Premchand Raichand Ltd and another v Quarry Services of East Africa Ltd and others (supra). The respondent then reiterated the contents of its replying affidavit and prayed that the court dismisses the ex parte applicant’s reference and uphold the taxing master’s ruling on the bill of costs.
Analysis and Determination
10.After considering the application, the response thereto and the written submissions, the issues that arise for determination are whether there is a competent reference before the court and if in the affirmative, whether the court should set aside the decision of the taxing officer dated 9/06/2021.
11.Paragraph 11 of the Advocates Remuneration Order provides as follows on the procedure to be followed when a party is dissatisfied with the decision of a taxing officer:(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.(3)Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.(4)The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) for the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.
12.The taxing officer delivered her ruling on 9/06/2021. Paragraph 11(1) of the Advocates Remuneration Order requires an applicant to give a notice in writing to the taxing officer on the items of taxation to which he objected to within fourteen (14) days. The applicant wrote to the taxing officer the letter dated 11/06/2021 seeking for reasons for the ruling. Upon perusal of the court file, there is no response from the taxing officer giving the reasons for her ruling. The ex parte applicant then filed the reference under consideration on 25/08/2021.
14.In this matter, the ex parte applicant took a period of 76 days from when the ruling for taxation was delivered which was on 9/06/2021 to 25/08/2021 when the reference was filed. As was held in the case of Evans Thiga Gaturu, Advocate v Kenya Commercial Bank Limited (supra) quoted above, in the event that the taxing officer does not furnish his reasons and an applicant is desirous of filing a reference but the fourteen-day period has lapsed, then the applicant has to make an application under paragraph 11(4) of the Advocates Remuneration Order seeking for extension of time.
15.The ex parte applicant in this matter did not seek for extension of time to file the reference and it is therefore this court’s view that there is no competent reference before it and the chamber summons application dated 24/08/2021 is hereby struck out with costs.