National Hospital Insurance Fund Board v The Deposit Proteciton Fund Board ( As Liquidators of Euro Bank Limited In Liquidation) & 4 others

4. The reasons advanced to ground the application, on the face of the application and in the supporting affidavit sworn by Firodosh Ebrahim Jamal are that; a. The taxing officer committed an obvious error when she found that the value of the suit could not be ascertained when there was indeed on record an amended plaint dated 5/9/2003 which pleaded a sum of Kshs.549,004,811.12. b. The taxing officer deviated from the legal guidelines provided by schedule 6 of the Advocate Remuneration order setting the scale applicable on instructions fees, and failed to appreciate the complexity of the matter and the amount of time expended by the advocate c. The taxing officer misapprehended the facts and the law applicable. 5. The application was served and fixed for hearing on 13/5/2025 and again on 3/6/2025. Both occasions it could not proceed because the plaintiff counsel sought time to file response to the application. In fact on the 3/6/2025 the counsel told the court that she would file the response by the end of the day. 6. However, when the matter came before the court on the 20/6/2025, during the Rapid Response Initiative week, the counsel for the applicant complained that despite the court’s directions that the response be filed by close of business on the 3/6/2025, the response had only been filed the evening before. The counsel complainant that the affidavit and submissions were prejudicial to his client for having been filed in disregard of the court directions and without explanation. He objected to the court taking the response into account and urged that it be struck out and the application deemed unopposed hence allowed as prayed. 7. The Respondents counsel in response told the court that he had filed not only Replying Affidavit but also submissions albeit late and he attributed the lateness to have arisen out of the fact that his client was in a transition hence it was difficult for him to retrieve the documents and identify an officer to swear the affidavit. 8. The court was not satisfied with the explanation and thus struck out the Affidavit but retained the written submissions on the basis that if there was law citied therein the same would enable the court make an enriched decision on the application. The Respondent was thus accorded the chance to resist the application on points of law only because the court appreciated that the determination sought demanded more application of the law than facts. 9. The application was thus argued on the basis of the written submissions by the applicant and those by the plaintiff/judgment debtor. 10. Even though parties had the right to address the court orally, the applicants counsel elected to say nothing arguing that his reading of the Respondent’s submission elicited nothing to comment upon. He thus adopted and relied on the filed submissions and asked for a ruling on the matter. 11. On his part, the plaintiff/judgment debtor’s counsel sought to highlight the submissions and reminded the court that in the application of this nature, the judge may only interfere with the discretion of the taxing officer where there is clear demonstration that there had occurred an error in principle. The counsel submitted that the impugned ruling show that the taxing officer never erred when she correctly applied the correct Advocates Remuneration Order and the schedules thereto; being the orders of 1997, 2006 and 2014. 12. The counsel supported the decision for having taken into account the fact that the suit was dismissed for non-attendance that the officer was evidently guided by binding decisions of in Joreth – vs – Kigamo [2002]eKLR as well as Peter Muthoka – vs – Ochieng [2019] KECA 597(KLR). https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11476/eng@2025-08-01 2

page 2 of 4

13. on the subject matter of the suit said by the applicant to have been disclosed, counsel referred the court to the decision in Nairobi Bottlers Ltd – vs – Ndungu cited in KAA – VS – Otieno Ragot & Co. Advocates [2024] 44 KLR for the proposition that where a suit is struck out, the sum pleaded is not automatically the subject matter for purposes of taxation. 14. The applicant’s advocate sought to offer a rejoinder and to comment on the decision of KAA – vs – Otieno Pagot & Co. Advocates by submitting that while in that decision the suit was struck out in this matter it was dismissed. He stressed that where the suit discloses a known value the remuneration order is clear on the sum to be charged as instructions fees. Analysis and Determination 15. The court proceeds from the position that the judicial duty to tax costs invites the judicial discretion of the taxing officer and the law is settled that it takes a very strong case for the court in reference, just like in an appeal to interfere with a decision reached upon exercise of discretion. That protection of the decision is however removed where there is no reason advance, in which event is in not judicious or where there is disclosed an error in principle. 16. An error in principle entail and include misapprehension or misapplication of the applicable schedule or a binding decision of the court. 17. In this matter it is clear that the court was actually abreast with the law applicable and in fact referred to the relevant decisions of the court of appeal which were otherwise binding upon it. 1In particular the taxing officer cited Peter Muthokas case(supra) where the court of appeal directed taxing masters thus:“ He does have a discretion as to what he considers just but that discretion kicks only after he engages with the proper basis as expressly and mandatorily provided; either to pleadings, the judgment or the settlement. He has no leeway to disregard the statutorily commanded starting point. And we think with respect that in starting point can only be one of the three” 18. Having been properly so guided, the master then rendered herself thus; “ ... the pleadings do not disclose the actual value of the subject matter. In the circumstances and guided by the above authorities and exercise of discretion taking into account the nature of the claim and work done, I find Kshs.300,000/= to be reasonable in this case. Kshs.8.075,012 is taxed off” 1 19. Earlier in the ruling the master said that there was no value in the plaint but there was Kshs.549,000,811 in the defence and counter claim. 20. The sums the taxing master taxed off was actually item 3, not 1 as asserted by the applicant. It was the instructions fee which then would determine item 160, getting up fees, as a percentage of instructions fees. 21. From the excerpt quoted above, it is clear that the taxing officer proceeded from the erroneous position that the pleadings did not disclose the value of the suit. 22. The court reads the excerpt to state that the only reason the master opted to exercise a discretion and assign what she considered just was the lack of value pleaded. Joreth Ltd –vs – Lagano & Associates[2002]eKLR and Peter Muthoka – vs – Ochieng and others[2019]eKLR https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11476/eng@2025-08-01 3

page 3 of 4

23. That the court finds was a clear misapprehension of the pleadings filed and in particular the amended plaint dated 5/9/2003. In that amended plaint, it was unequivocally pleaded at paragraphs 40, 41, 71, 72 and prayer (a) a specific sum of Kshs.549,004,811.12. 24. Pursuant to schedule 6 paragraph 1 of the advocates Remuneration order, the master was bound to use the sum pleaded in the plaint and contested by the defendants. She had no basis to exercise a discretion and assert lack of value when the value was repeatedly stated in the plaint and equally contested by the various defences filed. 25. For the finding that the suit did not disclose a value, the master erred gravely to an extent that the interference by the court is invited as a matter of necessity. For that error the decision is set aside. 26. Having set it aside, and in order that parties are heard on the taxation, the matter is remitted to a different taxing master with directions that the instructions fees, be taxed in accordance with the advocates remuneration order in force as at the date the amended plaint dated 15/9/2013 was filed. 27. Because the matter is yet to be concluded, the court directs that the costs of this objection shall be to the applicant/decree holder and shall be awarded as part of the fees for attending taxation pursuant to paragraph 69 (3) of the Advocates remuneration order. 28. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 1ST DAY OF AUGUST, 2025. PATRICK J O OTIENO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11476/eng@2025-08-01 4

page 4 of 4