Mbai Waweru Advocates v Invesco Assurance Co Ltd (Miscellaneous Civil Application E194 of 2021)  KEHC 2030 (KLR) (Civ) (9 March 2023) (Ruling)
Neutral citation:  KEHC 2030 (KLR)
Republic of Kenya
Miscellaneous Civil Application E194 of 2021
CW Meoli, J
March 9, 2023
Mbai Waweru Advocates
Invesco Assurance Co Ltd
1.For determination is the chamber summons dated 22.10.2021 by Mbai Waweru Advocates (hereafter the Applicant) seeking that the decision of the taxing officer delivered on 30.09.2021 on the bill of costs dated 23.04.2021 be set aside and that the bill of costs be taxed afresh before a different taxing officer or alternatively that this court in exercise of its inherent jurisdiction be pleased to re-tax the bill of costs dated 23.04.2021 afresh. The summons is expressed to be brought inter alia under Paragraph 11(2) & 4 of the Advocates Remuneration Order, on grounds on the face of the thereof as amplified in the supporting affidavit sworn by Kairu Timothy Waweru, counsel for the Applicant.
2.The gist of counsel’s affidavit is that the Applicant filed a bill of costs dated 23.04.2021 and urged the court to tax the same in the sum of Kshs. 153,977.50/-. That the taxing officer by a decision delivered on 30.09.2021 taxed the bill at Kshs. 57,309.50/- and aggrieved by the said ruling, the Applicant filed this reference.
3.It is asserted that the taxing officer misapprehended and misapplied the principles of taxation and the correct principles in Schedule 7 of the Advocates Remuneration Order 2006, 2009 & 2014, notably to increase item No. 1 by one half as provided for under Schedule 7 of the Advocates Remuneration Order 2006. He further deposes that the learned taxing officer failed to appreciate that Items 3, 5, 7-12, 15, 19-21 & 23-29 in relation to attendances and drawings are provided for under Schedule 7 of the Advocates Remuneration Order 2006, 2009 & 2014. In conclusion, he asserts that taxing officer failed to apply the law when determining the bill of costs and thereby arrived at an improper decision.
4.The chamber summons, like the bill of costs, was unopposed and was canvassed by way of written submissions. The Respondent did not file any response and or participate in the proceedings despite service.
5.The Applicant’s submissions essentially reiterated the contents of counsel’s affidavit material. Counsel contended that the taxing officer misapplied the principles of taxation and failed to apply the correct principles in Schedule VII of the Advocates Remuneration Orders 2006, 2009 & 2014. That the foregoing Schedule prescribes that the Advocate-Client fees shall be increased by one-half. It was further argued that the learned taxing officer further failed to appreciate Items 3, 5, 7-12, 15, 19-21, 23-29 in relation to attendances & drawings in line with the Advocates Remuneration Orders 2006, 2009 & 2014 and thereby arrived at an improper decision. In conclusion, the court was urged to allow the chamber summons by setting aside the taxing officer’s decision dated 30.09.2021 and to order that the bill of costs be placed before a different taxing officer.
6.The Court has considered the grounds of the reference as well as the affidavit material and submissions. Equally, the court has perused the record herein. In Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd  EA 162, Spry, V-P. stated at p.164 that:
7.The Court of Appeal in that case proceeded to lay down some principles to undergird the exercise of discretion by taxing officers in the assessment of costs as follows:-1.The foregoing was affirmed by Ojwang J (as he then was) in Republic v Minister for Agriculture & 2 others Ex-parte Samuel Muchiri W’Njuguna & 6 others (supra). The learned Judge observed that:-
9.Similarly Ringera, J (as he then was) in First American Bank of Kenya v Shah & Others  1 E.A. 64 at p.69 to the stated;-
10.With the foregoing principles in mind, the Court has reviewed the grounds argued before it. The Applicant’s reference is specific to Items 1, 3, 5, 7-12, 15, 19-21, 23-29. Particular attention was drawn to instruction fees, drawings, and attendances in line with the Advocates Remuneration Orders 2006, 2009 & 2014. Regarding Item 1 of the bill of costs, it was contended that the taxing officer failed to increase it by one-half as prescribed under Schedule VII of the Advocates Remuneration Order 2006. In Nanyuki Esso Services v Touring and Sports Club  E.A 500 the Court of Appeal stated that:-
11.The same court in Joreth Limited v Kigano and Associates  1 E.A 92 stated that:
12.The taxing officer while seeking guidance from the dicta in Joreth Limited proceeded to award Kshs. 25,200/- under Item 1. And in so doing expressed herself in part as follows;-
13.A perusal of the record and material presented before the taxing officer for purposes of the taxation, reveals that the Applicant was duly instructed by the Respondent to defend Nairobi Milimani CMCC No. 12110 of 2006 in January 2007. The taxing officer correctly applied herself when she used Schedule 7 of the Advocates Remuneration Order 2006 in assessing the taxable amount under Item 1. The officer made a finding, perhaps based on the bill of costs, that the value of the subject matter was Kshs. 126,035.00/-, although a perusal of the claim supporting documents in respect of the bill cost does not reveal the value of the subject matter. All the same, the value stated was not disputed by the Respondent and the taxing officer cannot be faulted for settling on the said value.
14.However, the bill of costs was in respect of an Advocate-Client relationship. Hence the amount awarded under Item 1 ought to have been increased by half as correctly argued by the Applicant. The Advocates Remuneration Order 2006 at Paragraph B of schedule 7 provides that;-
15.The implication of the foregoing provision of the Advocates Remuneration Order, is that all awardable items under Part A of Schedule 7 as between advocate-client are to be increased by one-half. Thus, the specific taxed sum in respect of item 1 ought to increase by one-half. Which means that item 2 would have to change.
16.Secondly, in respect of Items 3, 5, 7-12, 15, 19-21, 23-29 that relate to drawings and attendances, it was the Applicant’s contention that the learned taxing officer failed to appreciate the foregoing items in line with the Advocates Remuneration Orders 2006, 2009 & 2014 and thereby arrived at an improper decision. The taxing officer in her ruling while addressing herself to the said items stated in her ruling as follows; -
17.Items 3, 5 & 15 relate to drawing whereas items 7-11, 15, 17-29 relate to various attendance by counsel in chambers in respect of Nairobi Milimani CMCC No. 12110 of 2006. Under Schedule 7 of the Advocates Remuneration Order 2006, 2009 and 2014 and as rightly noted by the taxing officer, there is no provision for drawings in respect pleadings such as memorandum of appearance and defence. However, concerning attendances the schedule explicitly provides for the same in respect of any attendance to chamber and or hearing as per Schedule 7 (6) and (7). The attendances were properly claimed and if satisfied the taxing officer could have allowed them. The deduction of attendances was erroneous.
18.The Court of Appeal in Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board  eKLR stated as follows;-An example of an error of principle is where the costs allowed are so manifestly excessive as to justify an inference that the taxing officer acted on erroneous principles – see Arthur v Nyeri Electricity Undertaking (supra) or where the taxing officer has over emphasized the difficulties, importance and complexity of the suit (see Devshi Dhanji v Kanji Naran Patel (No. 2),  KLR 243. We have no doubt that if the taxing officer fails to apply the formula for assessing instructions fees or costs specified in schedule VI or fails to give due consideration to all relevant circumstances of the case particularly the matters specified in proviso (1) of schedule VIA (1), that would be an error in principle. And if a judge on reference from a taxing officer finds that the taxing officer has committed an error of principle the general practice is to remit the question of quantum for the decision of taxing officer (see - D’Souza v Ferrao  EA 602. The judge has however a discretion to deal with the matter himself if the justice of the case so requires (see Devshi Dhanji v Kanji Naran Patel (No. 2) (supra).”
19.The court finds merit in the Applicant’s complaints regarding the taxation in respect of instruction fees and attendances and will allow the reference with costs. The decision of the taxing master is hereby set aside and the court directs that the bill of costs be taxed afresh before a different taxing officer.
DELIVERED AND SIGNED IN OPEN COURT ON THIS 9TH DAY OF MARCH 2023C.MEOLIJUDGEIn the presence of:Mr. Kamau for ApplicantRespondent: AbsentC/A: Carole