(Civil Case E002 of 2022)
In the recent ruling on November 8, 2023 in the legal battleground between Mwiti & another v Viljoen & another, Hon. Justice A.K. Ndung’u straightened out the legal maze of taxation of legal fees and attachment of documents issues surrounding a reference against a Taxing Master’s decision. The case, marked [2023] KEHC 24906 (KLR), features Silas Mwiti as the 1st Respondent and Sunland Roses Ltd as the 2nd Respondent, opposing Johannes Petrus Viljoen, the 1st Applicant, and Oletala Limited, the 2nd Applicant.
The Crux of the Matter revolves around a chamber summons dated 18/10/2022, challenging the Taxing Master’s decision on specific items in the Defendants’ Bill of Costs. The Applicants sought to set aside the decision on items 1(a), (b), and (c), item no. 10, and item no. 12, urging the court to remit the Bill of Costs back to the Taxing Master or re-tax the referred items.
The Grounds for Dispute of the application were based on the assertion that the Taxing Master erred in handling item 1(a) (b) and (c) by deeming the valuation report and charge sheet inapplicable for assessing the subject matter’s value. Additionally, the Applicants argued that the Taxing Master misconstrued the folio count for items 10 and 12, assessing them as one folio each instead of three.
The legal sparring unfolded in written submissions, with the Respondents not filing any. The Applicants contended that the Taxing Master’s reliance on Giuseppe Bozzolasco vs Anneliese S. Feller & 3 others (2014) eKLR was misplaced. They argued that the Plaintiffs’ claims were distinct, warranting separate fees. The Taxing Master’s interpretation of Paragraph 13 of the Advocates (Remuneration) Order, 2009, was also challenged.
Justice A.K. Ndung’u approached the issues methodically. On the consolidation of instruction fees, the court echoed the Taxing Master’s reliance on Giuseppe, emphasizing the intertwined nature of the Plaintiffs’ claims. The ruling reinforced that where claims are inseparable, consolidating instruction fees is permissible, citing legal precedents.
On the admission of the valuation report and charge sheet, the court underscored that the Taxing Master’s refusal was appropriate, pointing to the Applicants’ procedural irregularities in the attachment of the aforesaid documents to their submissions instead of being part of the proceedings.
The ruling, devoid of any clear error of principle or manifest injustice, dismissed the reference, endorsing the Taxing Master’s sound application of discretion. The legal maze, intricately navigated by Justice A.K. Ndung’u, sheds light on the nuanced application of rules governing costs, the valuation of claims, and the need for meticulous pleading.
As the legal curtains fall on this episode, it leaves practitioners and litigants with a profound understanding that the path to justice is riddled with precise adherence to procedural norms and a keen appreciation of the intricacies in legal taxation.
Authors:
Zahra Nechesa (CS) – Partner
Nderitu Wang’ombe – Lawyer
