Muri Mwaniki & Wamiti Advocates v The Monarch Insurance Limited

2. 2. this Honourable Court be pleased to tax the items of the Bill of Costs dated 10th September 2028 set out in 1(a)-(f) above. 3. in the alternative to Prayer 2 above, this Honourable Court do remit the items of the Bill of Costs dated 10th September 2018 set out in 1(a)-(f) above to another Taxing Officer for taxation with direction on the taxation. 4. the Advocate/Applicant be awarded costs of this application. The grounds in support of the application are as follows:a) The Learned Taxing Officer erred in law and misdirected himself in principle in holding that Schedule 7 of the Advocates (Remuneration) Order 2006 applied to the taxation of Bill of Costs dated 10th September 2018 when the Advocate/Applicant filed, contemporaneously with the Bill of Costs, a Notice of Election dated 10th September 2018, electing under paragraph 22 of the Advocates (Remuneration) Order ("the Order") to charge the Bill of Costs under Schedule V, Part II of the Order. b) The Learned Taxing Officer erred in law and misdirected himself in principle in taxing Item 1 relating to instruction fees by finding it is not proper to increase the instruction fees by a half when as provided under Paragraph 22 (2) of the Advocates Remuneration Order not to charge less than the appropriate schedule, recourse to for equivalent instructions fees in Schedule 7 of the Order would require, per Part B of the said Schedule 7, that the minimum instruction fees for advocate and client costs will be the party and party costs prescribed, or as ordered by a court or agreed upon by the parties increased by one-half or 50%. c) The Learned Taxing Officer erred in law and misdirected himself in principle in taxing off Items 2-5, 7-9, 11-15, 17-21, 24, 27-34, 37-38, 41-43, 46-48, 51-55, 58-64, 67-74, 77-81, 84-90, 93-99, 103-121 relating to receiving, perusals, drawings, making copies and attendance at the court registry on the premise that they are not supported by evidence when the Advocate/Applicant filed a List of Bundle of Documents in support of the Bill of Costs dated 22nd September 2021 and in any case, all the above mentioned items are chargeable and subject to taxing under Schedule V, Part II of the Advocates Remuneration Order by virtue of Advocate/Applicant herein having filed a Notice of Election electing to charge under this Schedule. d) The Learned Taxing Officer erred in law and misdirected himself in principle in taxing off Items 6, 10, 16, 23, 26, 36, 40, 45, 50, 57, 66, 76, 83, 92, 100, 102, and the unnumbered items at the foot of the Bill falling between item 121 and 122, which relate to journeys from home yet the items were unopposed and in any event, the Learned Taxing Officer could have directed under Paragraph 13A of the Advocates Remuneration Order for the production of such documents necessary to make a determination on this. Further, the Learned Taxing Officer ought to have taken judicial notice that the Applicant’s firm was based in Nairobi from where the journey would be made to court in Machakos, covering the time indicated in the said items described in terms of hours as is required for journey from home under Schedule 5 of the Advocates Remuneration Order. e) The Learned Taxing Officer erred in law and misdirected himself in principle in taxing Items 22, 25, 35, 39, 44, 49, 56, 65, 75, 82, 91, 101 and the unnumbered items at the foot of the Bill falling between item 121 and 122 which relate to attendance for hearing and other court attendances under Schedule 7 of the Advocates Remuneration Order of 2006 when the same ought to have been taxed under paragraph 3 of Schedule 5 of the Advocates Remuneration Order of 2009 and 2014. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14471/eng@2025-07-08 2

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f) The Learned Taxing Officer erred in law and misdirected himself in principle in taxing Items relating to attendance at the registry with regard to the Bill of Costs at the High Court at Kshs.500 under Schedule 7 of the Advocates Remuneration Order of 2006 when the same ought to have been taxed under paragraph 3 of Schedule 5 of the Advocates Remuneration Order of 2014. g) The Learned Taxing Officer erred in law and misdirected himself in principle in failing to tax items, 78, 88, 92 and 94 when the same ought to have been taxed under paragraph 3 of Schedule 5 of the Advocates Remuneration Order of 2014. h) The Learned Taxing Officer erred in law and misdirected himself in principle in taxing Item 123 relating to VAT by applying it only on the instruction fees yet VAT is chargeable under Value Added Tax Act, 2013 on the Advocates full fees. i) The Learned Taxing Officer erred in principle by failing to exercise his discretion properly and made manifest error resulting in the grant of grossly deficient award of Kshs.100,975.70. k) It is in the interest of justice that the Learned Taxing Officer's taxation in the ruling of 14th October 2021 be set aside and that this Honourable Court be pleased to tax the Bill of Costs or remit it to another Taxing Officer for taxation. 3. The application is further supported by the affidavit of Mr. Martin G. Mwaniki, a partner in the applicant’s firm sworn on 3rd November 2021. 4. The Respondent did not file a response to the Applicant s’ bill of costs. Parties were directed to canvass the reference herein by way of written submissions. The Respondent did not file its submissions despite it being granted the last chance to do so on 8th May 2025. 5. Mr. Mwaniki, Advocate depones that Taxing Officer erred in law and misdirected himself in principle in holding that Schedule VII of the Advocates (Remuneration) Order 2006 applied to the taxation of Bill of Costs dated 10th September 2018 when the Advocate/Applicant filed, contemporaneously with the Bill of Costs, a Notice of Election dated 10th September 2018, electing under paragraph 22 of the Advocates (Remuneration) Order ("the Order") to charge the Bill of Costs under Schedule V, Part II of the Order. 6. Paragraph 22 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” 7. . I have seen the Applicant’s Notice of Election dated 10th September 2018 which was filed together with the Bill of Costs dated 10th September 2018 indicating that the Applicant complied with that paragraph. 8. In Aldrin Ojiambo t/a Ojiambo & Co. Advocates v Mohamedraza Hussein Jagani & Another Misc. Cause 320/2005 (U.R) at Milimani, Ochieng J correctly remarked that:“ 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” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14471/eng@2025-07-08 3

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9. In his ruling and order dated 14th October 2021, the Learned Taxing Officer states as follows:“ …the applicable Advocates Remuneration Order is for 2006 Schedule 7 ….the trial court awarded Kshs.1,335,300/= which fact has not been controverted and the said award attracts instruction fees of Kshs.62,882.50/=.….the Applicant urged the court to increase the instruction fees by 50% under paragraph 1(d) of the ARO …..Having considered the cited authorities, and having regard to the subject of the suit and general conduct of the matter, I do find that this is not a proper case for increasing the instructions fees by half consequently the said item is taxed off accordingly. …VAT on item 1 is taxed at Kshs.10,061.20/= being 16% of item 1. …All items dealing with receiving, perusals, drawings, making copies, attendances at the court registry are taxed off as they are not supported by evidence. ….All items dealing with journey from home are taxed off as they are not supported by documents ….For attendance for hearing is taxed at Kshs.3,500/= all subsequent hearing thereof are taxed at Kshs.1,500/= while all other attendances plus where the hearing did not proceed are each taxed at Ksh.1,000/= as the same did not last more than an hour. ….Drawing Bill of Costs is taxed at Kshs.1260/= whereof making copies of the same is taxed at Kshs.567/=. ….All items dealing with attendance at the court registry in the high court are taxed at Kshs.500/= each while services for documents done in the High Court are taxed at Kshs.1,400/=. 8. From the above, it appears that the Learned Taxing Officer was wholly unaware that together with the Bill of Costs the Applicant also filed the letter dated 10th September 2018 signifying the election and in the Bill of Costs itself, the Applicant again specifically put in the heading “Charged under Schedule V of the Advocates (Remuneration) Order” 9. Clearly the Applicant complied with paragraph 22(1) of the ARO and the Taxing Officer like in Aldrin Ojiambo case (supra) acted in error which error is so substantial that having acted on the wrong principle, the proceedings thereafter were all conducted wrongly to the prejudice of the Applicant. 10. Since it is not good practice for the High Court to assume the jurisdiction which is one of discretion given to the Taxing Officer, this court will order that the Bill of Costs dated 10th September 2018 be retaxed by any other Taxing Officer of this court exercising discretion under Schedule V of the Advocates (Remuneration) Order and for the ends of justice to be met, the Respondent will also be heard. 11. The costs of the Reference are awarded to the Applicant. 12. It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY AT MACHAKOS ON 8TH JULY 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 8TH JULY 2025 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14471/eng@2025-07-08 4

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In the presence of : ………................................. for Applicant ……….............................. for Respondent ......................... Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14471/eng@2025-07-08 5

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