Logitech International Limited v Kenya Ports Authority & 3 others

f. The costs of this application be provided for. 2. From the grounds of the application and the Supporting Affidavit, the Applicant disputed the amount taxed as instruction fees and getting-up fees and the failure of the Taxing Master to consider that the suit was struck out at the preliminary stage. 3. The 3rd Respondent filed Grounds of Opposition dated 15/01/2025 seeking to have the Chamber Summons dismissed with costs for reasons that the Applicant’s application fails to disclose any errors on record to warrant granting of stay of execution orders nor having the Bill of Costs taxed afresh. 4. The 4th Respondent filed a Replying Affidavit dated 17/03/2025. It was deponed that the Applicant had not met the ingredients for granting of stay of execution orders nor given reasons to have the Bill of Costs taxed afresh. It was said there was no threat of execution as at the time of filing the application. 5. Further, it was deponed that he Taxing Master discerned the value of the subject matter from the pleadings and correctly applied the provisions of Schedule VI Part (b) of the Advocates (Remuneration) Order in taxing the Bill of Costs. It was prayed that the application be dismissed with costs. 6. The 1st and 2nd Respondents did not participate in the proceedings. 7. The application was canvassed by way of written submissions. The Applicant, the 3rd Respondent and the 4th Respondent filed their rival submissions. Analysis and Determination 8. 9. I have considered the application, the responses and the submissions together with the authorities relied upon by the parties. The issues for determination are; a. Whether the Chamber Summons has merits b. Who pays the costs The role of this court on a reference from taxation by the Taxing Master is clearly delineated. In Kipkorir, Tito & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR, the Court of Appeal held as follows; “ …On reference to a Judge from the Taxation by the Taxing Officer, the Judge will not normally interfere with the exercise of discretion by the Taxing Officer unless the Taxing Officer erred in principle in assessing the costs…” 10. In Peter Muthoka & Another v Ochieng & 3 Others [2019] eKLR, the Court of Appeal restated this position of not lightly interfering with the Taxing Master’s discretion by holding as follows: “ …It is not lost to us … that matters of quantum of taxation properly belong in the province and competence of taxing masters. They fall within their discretion and so the High Court upon a reference will be slow to interfere with them. It is not a wild and unaccountable discretion, however, because it is at its core and by definition a judicial discretion to be exercised, not capriciously at a whim, but on settled principles. When it is shown that there was a misdirection on some matter resulting in a wrong decision, or it is manifest from the case as a whole that the discretion was improperly exercised, resulting in injustice, to borrow the holding in Mbogo v Shah [1968] EA 93 then though the decision is discretionary may be properly interfered with…” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19549/eng@2025-11-13 2

page 2 of 4

11. The question is whether the Taxing Master erred in principle on taxation of the instruction fees. It is settled that instruction fees is calculated from the value of the subject matter which is determined from the pleadings, judgment or settlement. 12. In the case of Joreth Ltd vs Kigano & Associates [2002] 1 E.A. 92, it was held as follows; “ We would at this stage point out that the value of the subject matter of a suit for the purposes of taxation of a Bill of costs ought to be determined from the pleadings, judgment or settlement (if such be the case), but if the same is not so ascertainable the taxing officer is entitled to use his discretion to assess such instruction fee as he considers just, taking into account, amongst other matters, the nature and the importance of the cause or the matter, the interest of the parties, general conduct of the proceedings, any direction by the trial judge and all other relevant circumstances.” 13. From the impugned ruling, the Taxing Master on instruction fees being guided by the above authority stated as hereunder; “ From the above guidance, I note from the pleadings that the plaintiff prayed for Kshs. 106,588,234.00/=. I will thus use such sum as the value of the instruction fees……… Getting up fees Rule 2 requires that this sum shall not be less than one third of the instruction fees. It follows that such fees is taxed at Kshs. 599,607.90” 14. The Applicant stated that the taxed amount was inordinately high as the suit was dismissed at the preliminary stage. In the case of Insurance Regulatory Authority v Waweru Gatonye & Company Advocates (2021) eKLR, it was held as hereunder; “ In this case the Deputy Registrar considered the value of the subject matter to be the Plaintiff’s claim of Ksh. 12,075,289,826.00 as prayed in the plaint. I do not hear the authority to claim that she wrongly assessed the value of the subject matter. Its complaint is that the amount awarded was excessive based on the stage the suit had reached. In light of the decision on Peter Muthoka’s case (supra), the value of the subject matter was correctly assessed based on what was pleaded since the matter had not been determined by way of judgment or settlement.” 15. From the above, I do agree with the Taxing Master while taxing the items based on the value as disclosed in the pleadings despite the suit being struck out at the preliminary stage. The taxed items shall not be interfered with. 16. Having found as above, the analysis and determination on whether the ingredients for granting of the order for stay of execution would just be an academic exercise. 17. On the issue of costs, it is settled that the same follows the event. That is the import of section 27 of the Civil Procedure Act. The court reserves its discretion on whether to award costs to a party or not. The 3rd and 4th Respondents filed their response and submissions to the application. I find no reason to deny them costs of this application. Determination 18. Following the foregone discourse, the upshot is that the following orders do hereby issue: - https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19549/eng@2025-11-13 3

page 3 of 4

a. The Chamber Summons dated 14/11/2024 has got no merits and the same is hereby dismissed. b. Costs awarded to the 3rd and 4th Respondents DATED, SIGNED AND DELIVERED AT MOMBASA, THIS 13TH DAY OF NOVEMBER, 2025. ……………………………….. F. WANGARI JUDGE In the presence of: Ms. Abdala Advocate for the Applicant Mr. Khagram Advocate for the 4th Respondent N/A by 1st, 2nd and 3rd Respondents Ms. Salwa, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19549/eng@2025-11-13 4

page 4 of 4