Kathurima v Mburugu (Civil Case E004 of 2022) [2024] KEMC 128 (KLR)

from the decision in Vincent Kibiwott Rono v Abraham Kiprotich Chebet & another [2022] eKLR (Nyakundi J.) where the learned Judge had this to say: “What is before the court is a reference of the decision delivered on 17th January 2022. A reading of the decision shows that it is a ruling on the taxation of the bill of costs dated 5th August 2021. The trial magistrate was exercising his jurisdiction as a magistrate and not a taxing oficer. Rule 10 of the advocates remuneration order provides; 7. The taxing oficer for the taxation of bills under this Order shall be the Registrar or a district or deputy registrar of the High Court or, in the absence of a registrar, such other qualified oficer as the Chief Justice may in writing appoint; except that in respect of bills under Schedule 4 to the order the taxing oficer shall be the registrar of trade marks or any deputy or assistant registrar of trade marks. 8. The court in Bernard Gichobi Njira v Kanini Njira Kathendu & another [2015] eKLR held; A magistrate is allowed and/or mandated by law to assess or tax costs payable in a given case. The words or terminology used whether “assess” or “tax” is immaterial in my view. The bottom line is to determine the total amount of costs payable. The fact that a magistrate has taxed or used the terminology “taxation” to assess or determine costs payable is not fatal if the bill presented before the court is in compliance with the requirements of Schedule VII of the Advocates Remuneration Order. To make a difierent finding in my view would be unconstitutional in view of Article 159 (2) (d) of the Constitution… 9. On the question of jurisdiction, there is no dispute from both sides in this reference that magistrates or indeed subordinate courts in Kenya have jurisdiction to determine costs payable in cases filed before those courts. The Applicant conceded that magistrates also have jurisdiction to assess costs but on the same breath contended that they lacked jurisdiction to tax costs presented to them by way of Bill of Costs. For me this is simply a question of semantics because ‘taxation of costs’ and ‘assessment of costs’ means one and the same thing. 10. Having established that taxation and assessment mean basically the same thing, it is therefore in order that the dispute as to the assessment is brought before this court by way of reference” 11. It is therefore evident that the trial magistrate fulfilled the purpose that was determination of the total amount of costs payable. The next bone of contention is the process a party disputing the assessment should follow. I note that there are no provisions for challenging assessments made by magistrate’s courts therefore, in the interests of justice, the high court which has jurisdiction to tax bills of costs can intervene. 12. In arriving at the foregoing position, the learned Judge found guidance from the authority of Donholm Rahisi Stores (firm) V EA Portland Cement Ltd [2005] eKLR where Waweru J held: “Taxation of costs whether those costs be between party and party or between advocate and client is a special jurisdiction reserved to the taxing oficer by the Advocates’ Remuneration Order. 13. The court will not be drawn into the arena of taxation except by way of reference (from a decision on taxation) made under Rule 11 of the Advocates Remuneration Order. 14. In the result, the Court find merit in the Grounds of Opposition dated December 7, 2023 and dismisses with costs the Objection by the Defendant/Applicant dated November 24, 2023. https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/128/eng@2024-01-15 2

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DAGTED, READ AND SIGNED AT GITHONGO LAW COURTS THIS 15TH DAY OF JANUARY, 2024 ----------------------HON. T. A. SITATI SENIOR PRINCIPAL MAGISTRATE GITHONGO LAW COURTS Present Wilson Nkunja Advocate for the Plaintifi/Respondent Ronny Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/128/eng@2024-01-15 3

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