International Centre for Policy & Conflict & 5 others v Attorney General & 4 others [2013] KEHC 6503 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. 552 OF 2012

CONSOLIDATED WITH PETITIONS NOS 554, 573 & 579 OF 2012

BETWEEN

INTERNATIONAL CENTRE FOR POLICY                                      

& CONFLICT & 4 OTHERS.........…...................1ST PETITIONER

CHARLES NDUNGU MWANGI………………...2^ND PETITIONER

PUBLIC PROCUREMENT ETHICS & GOVERNANCE……………3^RD PETITIONER

HENRY NYAKUNDI NYANGAYA……………...4^TH PETITIONER

KENYA HUMAN RIGHTS COMMISSION…….5^TH PETITIONER

INTERNATIONAL COMMISSION OF                                            

JURISTS, KEYA ……………………………….. 6^TH PETITIONER

AND

THE ATTORNEY GENERAL…………………..1^ST RESPONDENT

INDEPENDNET ELECTORAL AND BOUNDARIES COMMISSION…………………………………...2^ND RESPONDENT

UHURU MUIGA KENYATTA………………….3^RD RESPONDENT

WILLAM SAMOEI RUTO……………………...4^TH RESPONDENT

JAMES ONDICHO GESAMI…………………...5^TH RESPONDENT

RULING

1. By a judgment delivered on 15^th February 2013, the court awarded costs of the petition to the 5^th respondent to be paid by the 4^th petitioner.  Consequently, the 5^th respondent filed a bill of costs dated 11^th March 2013 for the taxation of his costs against the 4^th respondent.

2. The 5^th respondent’s Notice of Motion dated 14^th June 2013 is a reference objecting to the decision of the taxing officer given on item 1 of the bill of costs being the instruction fee sought. In the said bill of costs, the 5^th respondent sought the sum of Ksh. 2,000,000.00 as instruction fees. The taxing officer, taxed off Ksh. 1,600,000.00 thereby assessing the instruction fee at Ksh. 400,000.00 only.  Item 3, which is the getting up fee, which is also contested, is dependent of the instruction fee.

3. The 5^th respondent is now dissatisfied with the reasons given by the learned Deputy Registrar dated 10^th May 2013 in which she set out the principles guiding her discretion and concluded as follows; “In the instant case, the amount of Kshs, 2,000,000/= which the 4^th respondent is seeking is excessive. The 4^th respondent has not demonstrated that this case was complex. Taking into account the above factors, Kshs 400,000/= is reasonable in respect of instruction fees. I tax off Kshs 1,600,000/= on him.”

4. The principles upon which the court may interfere with the learned Deputy Registrar’s discretion are now well settled. In Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board  Nairobi Civil Appeal No. 220 of 2004 [2005]eKLR, the Court of Appeal stated that, “the judge will not normally interfere with the exercise of discretion by the taxing officer unless the taxing officer, erred in principle in assessing costs.”

5. In my view and I agree with the applicant, the learned taxing officer failed to take into account or address herself to the factors set out in the proviso (1) to Schedule VIA(1) of the Advocates Remuneration Order. Although the learned Deputy Registrar addressed the various authorities that elucidated how her discretion ought to be exercised, she failed to consider the factors and apply them to the case at hand.

6. Further, the learned Deputy Registrar concluded that the amount claimed was excessive without setting out or establishing a basis for the finding that the amount claimed was excessive. She also found without setting out the reasons for her conclusion that the matter was not complex.

7. In the Kipkorir, Titoo & Kiara Case (supra), the Court of Appeal added that; “We have no doubt that if a taxing officer fails to apply the formula for assessing 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 the proviso (i) of schedule VIA(1), that would be an error in principle.”

8. Likewise, I find and hold that the learned Deputy Registrar erred in principle by failing to take into account and apply the factors elaborated in proviso (1) of schedule VIA(1) of the Advocates Remuneration Order  in coming to the conclusion that the amount sought was excessive and that the matter was not complex. I am therefore entitled to interfere with her decision.

9. I therefore make the following Order;

1. The decision dated 10^th May 2013 is set aside to the extent of Item 1 and 3 of the Bill of Costs dated 11^th March 2013.
2. The taxation shall proceed before a different taxing officer.
3. There shall be no order as to costs.

DATED and DELIVERED at NAIROBI this 23^rd day of August 2013.

D.S. MAJANJA

JUDGE

Mr Thiga instructed by Waruhiu K’Owade and Nga;ng’a Advocates for the 5^th respondent.