REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
Civil Misc 176 of 2007
NYAMOGO & NYAMOGO ADVOCATES ………………. APPLICANT
VERSUS
PROTEX (K) EPZ LIMITED …………….…………..... RESPONDENT
RULING
1. Before me are two Applications; the first is dated 26/11/2007, by the Applicant seeking orders under
paragraph 11 (2) of the Advocates Remuneration Order that the decision of the Taxing Master dated
26/10/2007 be reversed and that the Bill of Costs dated 28/6/2007 be allowed as filed since the same was
not opposed. Costs of the Reference to this court are also sought. The second Application is dated
20/12/2007 and premised also on paragraph 11 (2) of the Advocates Remuneration Order and in it, the
Respondent seeks orders that the Bill of Costs dated 26/10/2007 be varied downwards because it was
unfair, overtaxed and outrageous.
2. I have seen the grounds in support of each of them and they are as follows:-
In respect of the former Application, that;
i. The Learned Taxing Master erred by purporting to tax the Bill of Costs under Schedule VII instead of
Schedule V.
ii. The Learned Taxing Master erred by failing to give reasons for his decisions to reduce the amounts
charged in the Bill of Costs.
In respect of the latter Application;
i. THAT the judgment debt is only Kshs. 150,000/= and the bill taxed at Kshs.137,877/= is therefore
exaggerated, overtaxed and outrageous.
ii. THAT the Respondent only filed and taxed three applications and hence the aforesaid sum of
Kshs.137,877/= is unfair and unjust in the circumstances.
iii. THAT in taxing the bill the taxing master ought to have taken into account that the Respondent was
not the only Advocate and therefore the bill of costs should not be larger than if a single advocate had
been employed.
iv. THAT the bill was also supposed to be accompanied by a certificate setting out the dates during
which all Advocates acted and in view of the fact that the certificate is not accompanied, the bill of costs
as taxed is unfair, unreliable and outside the rules of law.
v. THAT the bill as taxed is unfair, unjust and highly exaggerated and therefore it is only fair that this
Honourable Court varies it.
3. Mr Nyamogo, Advocate, a partner in the Applicant firm in his Supporting Affidavit sworn on
26/11/2007, depones that the biggest complaint he has with the Taxing Master’s decision is the fact that
whereas he argued that the Bill of Costs had been properly brought under schedule V of the Advocates
Remuneration Order, the learned Taxing Master proceeded to tax the Bill under Schedule VII because the
Applicant had allegedly not complied with paragraph 22 (1) of the Advocates Remuneration Order. That
in fact there was compliance with that paragraph and I have seen annexture “NON 4” which is a copy of a
letter by Mr Nyamogo, ostensibly to his client, in compliance thereof.
4. I think I should first deal with the arguments above before turning back to the Respondent’s
Application, if at all I should. In his submissions, Mr Nyamogo emphasized the point that there was no
basis for the Taxing Officer to have denied the Applicant costs under Schedule V because the Bill of
Costs specifically pointed him to that schedule and since there was no objection to it inspite of service on
the Respondent, the Bill ought to have been allowed as prayed.
5. Paragraph 22(1) of the Advocates Remuneration Order provides as follows:-
“In all cases in which any other Schedule applies an advocate may, before or contemporaneously
with rendering a bill of costs drawn as between advocate and client, signify to the client his election
that, instead of charging under the Schedule, his remuneration shall be according to the scale
applicable under the other Schedule.”
6. As Ochieng J correctly remarked in Aldrin Ojiambo t/a Ojiambo & Co. Advocates vs
Mohamedraza Hussein Jagani & Another Misc. Cause 320/2005 (U.R) at Milimani:-
“The paragraph speaks for itself clearly… it is not open to the taxing officer to make an election to
apply Schedule V. The right to make an election vests in the advocate.”
7. I have perused the record in this matter and there are two significant issues that I must point out:
a. On 28/6/2007, the Applicant wrote a letter to the Respondent giving notice that the Bill of Costs dated
28/6/2007 “…is prepared and brought under Schedule V of the Advocates (Remuneration) Order,
Cap 16 Laws of Kenya, and the same shall attract interest at 14% per annum in accordance with
paragraph 7 of the said Advocates Remuneration Order.” The letter was received in court on the
same date and the court stamp is on it, signifying receipt.
b. In his order dated 31/10/2007 giving the reasons for the taxation, the learned Taxing Officer states as
follows:-
“The reason for assessing the bill of costs under Schedule VII is that there is no evidence put forth
by the applicant showing that the applicant has as required by rule 22 (1) of the Advocates
Remuneration Order signified to his client that they wished to charge (sic) their costs under
Schedule V and not Schedule VII. Such evidence would have been in form of a copy of the letter
signifying such election.”
8. It is clear from the statement above that the learned Taxing Officer was wholly unaware that together
with the Bill of Costs, the Applicant also filed the letter signifying the election and in the Bill of Costs
itself, the Applicant again specifically put in the heading, “Advocates Bill of Costs under Schedule V”.
The Applicant fully complied with paragraph 22 (1) aforesaid and the learned Taxing Officer like in the
Aldrin Ojiambo case (supra) acted in error. The error is however so substantial that having acted on the
wrong principle, the proceedings thereafter were all conducted wrongly to the prejudice of all the parties.
9. Regarding the Application by the Respondent, I see no need to go into it in view of the reasoning
above. Since I will shortly make orders that the Bill be re-assessed in view of the general principle above,
let the Respondent raise all complaints it may have at that forum.
10. I will order that the Bill be re-taxed because it is not good practice for the High Court to assume the
jurisdiction which is one of discretion given to the Taxing Officer. That is why Kuloba J. in Judicial
Hints on Civil Procedure stated as follows:-
11. “Whether, if the matter were to be remitted, it should be remitted to the same or to another
different taxing officer; The proper course, where a taxing officer has erred in principle, is to make
a remit to another taxing officer and to order a retaxation of the bill in terms of the court’s ruling.
That is the usual and proper course: Cram J in a ruling dated 3 October 1958, at folio 18 on
“Taxation Rulings”. Where a case is remitted, there is sometimes an advantage in its coming
before a different taxing officer, sometimes an advantage in its coming before a different taxing
officer, who can bring a fresh mind to it. On the other hand, if the taxing officer from whose
taxation appeal was made, is familiar with what is a complex case, no objection being taken against
him and especially if there is no other officer of comparable experience, the same taxing officer
should re-assess the bill: Spry JA in Steel Construction and Petroleum Engineering (EA) Ltd v
Uganda Sugar Factory Ltd, (1970) EA 141 at 146 (20 December 1969). Cf paragraph 180, Note 2,
post.”
12. My directions therefore in conclusion are that since Mr Gicheru, SPM and Taxing Officer has left this
station, let any other Taxing Officer of this court re-tax the Bill of Costs under Schedule V of the
Advocates (Remuneration) Order and for the ends of justice to be met, let the Respondent also have a
hearing. The Taxing Officer’s discretion should be exercised in the usual manner.
13. The costs of the Reference shall be awarded to the Applicant in any event.
14. Orders accordingly.
Dated and delivered at Machakos this 29th day of April 2008.
ISAAC LENAOLA
JUDGE
In the presence of:
Mr Nyamogo for Applicant
N/A for Respondent
ISAAC LENAOLA
JUDGE
