Oloo v Maina (Miscellaneous Reference Application E182 of 2021)  KEHC 2517 (KLR) (27 March 2023) (Ruling)
Neutral citation:  KEHC 2517 (KLR)
Republic of Kenya
Miscellaneous Reference Application E182 of 2021
RN Nyakundi, J
March 27, 2023
Caleb Atsango Maina
1.The applicant approached this court vide an application dated 22nd November 2022 seeking the following orders;1.Spent2.Spent3.That the decision of the taxing officer as evidence d in the certificate of costs dated 22nd October 2021 with respect to all the items in the bill of costs to be set aside and taxed afresh by this honourable court with input by both parties.4.That in the alternative, the honourable court be pleased to order that the respondent’s bill of costs (if any) be taxed afresh by another taxing master with the input of both parties.5.That the court be pleased to order the respondent to effect service of the bill of costs upon the applicants and/or their counsels.6.That costs of this application be provided for.
2.The application is premised on the grounds set out therein and the contents of the affidavit sworn by Amihanda Anthony in support of the same.
3.The applicant’s case is that no supporting documents, in the form of receipts and/or a breakdown were availed as at the time of effecting service of the Bill of Costs. This contravenes the provisions of Order 21 Rule 9A of The Civil Procedure (Amendment) Rules, 2020 (Legal Notice No. 22). The appellant contended that the laid down procedure to file the reference as per the provisions of Rule 11 of the Advocates Remuneration Order, 2014 was followed and further, that the applicant’s counsel proceeded to do a correspondence to the Honourable court/ taxing officer on 5th November, 2021 requesting or a copy of the ruling/ reasons giving rise to the certificate of costs. The same was done within the 14 days' timeline required by the Law and to this date the same has never been complied. The same therefore, was issued un-procedurally and deserves and intervention from this court. Counsel urged that no legal basis having been advanced and/or a ruling giving rise to the Certificate of costs, it is the Applicant's contention that the court intervenes, sets aside the certificate of costs and direct that the same be re-assessed afresh or the court herein proceeds to re-asses the said Bill of Costs fresh in line with Schedule 7 of the Advocates Remuneration Order.
4.The respondent opposed the application and stated that when the matter came up for assessment of the Party and Party bill of costs before the Civil Registry the Applicants had an opportunity to object to any of the items that they wished to oppose. He urged that the application is premature as it offends the provisions of rule 11 of the advocates remuneration order and that the court has no jurisdiction to hear the application as there is no provision of reference of assessment of party to party costs from the subordinate court to the high court. It was his case that the applicants are undeserving of the orders sought as he is in contempt of the order to pay half the costs as ordered on 21st January 2022.
Analysis & Determination
5.Upon perusing the application and the response to the same I have identified the following issues for determination;1)Whether the court has jurisdiction to determine the reference2)Whether the decision of the taxing officer should be set aside
Whether the court has jurisdiction to determine the reference
6.The Court of Appeal in Owners of Motor Vessel “Lilian S” V Caltex Oil (Kenya) Ltd  KLR 1 where the Court of Appeal (per Nyarangi JA ……. held as follows: -
7.In Donholm Rahisi Stores (firm) V EA Portland Cement Ltd  eKLR Waweru J held:
8.It follows that the court is therefore clothed with the jurisdiction to entertain the present reference.
Whether the decision of the taxing officer should be set aside
9.Order 21 Rule 9A of the Civil Procedure (Amendment) Rules, 2020 states as follows;
10.As regards the germane issue on review jurisdiction of a taxing masters decision a plethora of cases have articulated the guiding principles as noted in the Kenya Kenya Ports Authority vs. Modern Holdings Limited Lady Stella Arach-Amoko DPJ held as follows:
11.Fundamentally, the taxing master in exercising discretion has to bear in mind the following principles set out in Kulona Richard Hints on Civil Procedure 2nd Edition pp 118 119 as follows:-a.The cost be not allowed to rise to such level as to confine access to courts to the wealthy:b.A successful litigant ought to be fairly reimbursed for the costs the has to incurc.That the general level of remuneration of advocates must be such as to attract recruits to the profession.d.That as fa as practicable, there should be consistency in the awards madee.That there is no mathematical formula to be used by the taxing master to arrive at a precise figure. Each case has to be decided on its own merit and circumstances.f.The taxing officer has discretion in the matter of taxation but he must exercise the discretion judicially, not whimsically.g.The court will only interfere when the award of the taxing officer is so high or so low as to amount to an injustice to one party
12.As a matter of history, deducible from the record there is a prima facie evidence of a party likely to be affected adversely by the decision of the taxing master was never given an opportunity to participate in that forum of convenience on taxation. I note that the applicant alleges that the application was never set down for directions on assessment and that there were no notices issued on the same, thus occasioning an ex parte taxation. The respondent has not provided any evidence that there was a hearing notice issued or that the applicant was notified of the ruling date.
13.Article 50 of the Constitution provides;
14.It follows that allowing the decision of the taxing master to stand as it is would occasion a miscarriage of justice and therefore, I find that the application succeeds partly in the following terms;1.The decision of the taxing master and the certificate of costs issued on 22nd October 2021 is hereby set aside.2.The respondent’s bill of costs be served on the applicants and taxed afresh by another taxing master with the input of both parties.3.Costs to the applicant
DELIVERED, DATED AND SIGNED AT ELDORET ON THIS 27th DAY OF MARCH 2023…………………………………….R. NYAKUNDIJUDGEmwinamoadvcoates@yahoo.com, info@Kglaw.co.keKimondo Gachoka & Company AdvocatesMwinamo Lugonza & Co. Advocates