REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW NO. E119 OF 2022 (JR)
JUSTUS KIATINE MATIVO ….…………...…….…………….………….….………
APPLICANT
VS
THE PRINCIPAL SECRETARY OF MINISTRY
OF PUBLIC SERVICE AND GENDER ………………...……….………….………1ST
RESPONDENT
THE ATTORNEY GENERAL …………...………......…..….....……….….……2ND
RESPONDENT
RESPONDENTS’ WRITTEN SUBMISSION ON BILL OF COSTS DATED
27th August, 2024
May it please the court,
A. INTRODUCTION
The Bill of Costs before you for taxation emanates the judgment delivered by
Hon. Justice. Chigiti on 30th November, 2024 in favour of the Ex-parte
Applicants who had sought orders of Mandamus for the payment of Kshs
2,156,322.24/= .
The Applicants filed a Bill of costs dated 27 th August, 2024 containing 71
items up for taxation.
The applicable law is the Advocates (Remuneration) Order 2014. Your
Honour, it is clear from the onset that the Applicant’s Bill of Cost is not drawn
in accordance with the Advocates (Remuneration) Order 2014.
We urge the Court in taxing this Bill to bear in mind the provisions of
Sections 1A and 1B of the Civil Procedure Act Cap 16 Laws of Kenya to
ensure and facilitate the just, expedient, proportionate and affordable
resolution of the civil disputes.
In Caltex Oil Limited - Vs- Evanson Wanjihia Civil Application No
Nairobi 190 of 2009. The Court in that case had this to say;-
“…The overriding objective provides that the purpose of the two Acts
and the rules is to facilitate the first, expeditious, proportionate and
affordable resolution of civil disputes. Although the overriding objective
has several aims, the principle aim is for the Court to act justly in every
situation either when interpreting the laws or overcoming its power.
The Court has therefore been given greater latitude to overcome any
past technicalities which might hinder the attainment of the overriding
objective”.
1. The Respondent’s humbly submit in opposition to Ex-parte Applicant’s bill
of cost dated 27th August, 2024.
2. INSTRUCTION FEES
On item 1, the applicant is seeking a sum of Kenya Shillings 650,000/= as
instruction fees. The applicable law is The Advocates (Remuneration) Order,
2014.
In the case of Joreth Limited -Vs- Kigano & Another (2002) IEA 92, the
Court of Appeal set out the following factors to be considered in determing
an instruction fee;-
a.) The importance of the matter.
b.) General conduct of the case
c.) The nature of the case
d.) Time taken for it’s dispatch
e.) Impact of the case on the parties.
This was a simple judicial review application thus the applicants’ claim of
Kenya Shillings 650,000/- is excessive and has no basis in law.
Your Honour, we pray that you be guided by the decision in Republic -Vs-
Minister for Agriculture Exparte Samuel Mburu Njuguna (2006) e
KLR at page 14
“The complex element in the proceedings which guide the exercise of
Taxing officers discretion must be specified cogently and with
conviction. The nature of the forensic responsibility placed upon
Counsel when they prosecute the substantive proceedings, must be
described with specificity. If novelty is involved in the main
proceedings, the nature of it must be identified and set out in a
conscientious mode. If the conduct of the proceedings necessitated the
deployment of a considerable amount of industry and was inordinately
time- consuming, the details of such a situation must be set out in a
clear manner. If large volumes of documentation had to be clarified,
assessed and simplified, the details of such initiative by Counsel must
be specifically indicated apart of course from the need to show if such
works have not already been provided for under a different head of
costs”.
And at page 15 of the same case, the Court added;-
“…..it follows in my view, that the responsibility entrusted to Counsel
in the proceedings was quite ordinary and called for nothing but
normal diligence such as must attend the work of a professional in any
field. I have to state that there was nothing novel in the proceedings
on such a level as would justify any special allowance in costs”.
It is our humble submission that the sum of Kenya Shillings 650,000/- as
instruction fee is exorbitant and overly excessive. We humbly urge the
Taxing master to exercise his discretion judiciously and reduce this amount
to the figure of Kenya Shillings 100,000 as provided for in the
remuneration Order this being a simple and ordinary application.
In First American Bank of Kenya Limited -Vs- Gulab P. Shah & 2
others (2002) IEA 64 at page 70-71
“…..I am of the opinion that if a defendant does research before filing a
defence informed by such research, he has done no more than
expected. The research is not necessarily indicative of the complexity
of the matter. It may well be indicative of the Advocates unfamiliarity
with basic principles of law. Such unfamiliarity should not be turned
into an advantage against the adversary”
Your Honour, we humbly submit that exorbitant instruction fees will hinder
access to justice as enshrined in the Constitution.
The Court of Appeal in Kipkorir Titoo & Kiara Advocates -Vs- Deposit
Protection Fund Board CA 220 of 2004. The Superior Court held that it
would be an error of principle if a Taxing master failed to apply the formula
for assessing instruction fees or costs specified under the applicable
remuneration order.
We humbly urge the Honourable Court to have the amount of Kenya Shillings
550,000 to be taxed off in item 1 of the bill of costs.
3. FEES FOR DRAWING PLEADINGS
Item No. 2 of the bill of costs with regards to drawing Notice of motion
and pleadings dated 28th September, 2022 is exaggerated and not drawn
to scale as per Advocates Remuneration Order 2014.Pleadings are usually
factored in as part of the instruction fees.
4. ADVOCATES COURT ATTENDANCE FEES.
Item No. 11, 20, 26, 32, 38,46,55,56 and 57 of the bill of costs with
regards to court attendance for hearings and mentions is exaggerated
and not drawn to scale as per Advocates Remuneration Order 2014. The
attendances were virtual and did not exceed 30 minutes.
5. DRAWINGS.
Item No 5,12,21,27,of the bill of costs on drawings and service of hearing
and mention notices are exorbitant and the claimed amounts are not
provided in the Advocates Remuneration Order.
B. CONCLUSION
Your Honour, we respectfully submit that the claimed sums have no basis in
law and we pray that the Court and the taxing officer be guided by Rule 16 of
the Advocates (Remuneration) Order, 2014. Rule 16 is on the discretion of
the taxing officer and provides thus; -
“Notwithstanding anything contained in this Order, on every taxation
the taxing officer may allow all such costs, charges and expenses as
authorized in this Order as appear to him to have been necessary or
proper for the attainment of justice for defending the rights of any
party, but, save as against the party who incurred the same, no costs
shall be allowed which appear to the taxing officer to have been
incurred or increased through over –action, negligence or mistake, or
by payment of special charges or expenses to witnesses or other
person, or by other unusual expenses”.
We humbly submit.
Dated at Nairobi this 9th day of September,
2024.
Leah Ngombi Gathenya
State Counsel
FOR; ATTORNEY GENERAL
DRAWN & FILED BY: -
HON. ATTORNEY GENERAL
ATTORNEY GENERAL’S CHAMBERS
STATE LAW OFFICE
P.O. BOX 40112 -00100
NAIROBI
Email:
[email protected],
[email protected]TO BE SERVED UPON: -
Nyabena Alfred and Company
Advocates
Hillside Apartments, 3rd Floor
Suite No. 10
Ragati Road, Off Haile Selassie Avenue
P.o Box 11869-00100
Nairobi.
