Automated Summary
Key Facts
The court dismissed an application to review a taxation ruling on costs awarded in a 2017 petition. The applicant argued the taxing master failed to adhere to the court's Kshs. 3 million cap and did not account for the novelty of the matter. The taxing master found the instruction fees (Kshs. 500,000) and getting up fees (Kshs. 166,666) reasonable given the petition was dismissed at a preliminary stage for non-compliance with the Election Act. The court upheld this, emphasizing the taxing master's discretion and the absence of new evidence to warrant review.
Issues
- The court evaluated if the taxing master's determination of instruction fees (Kshs. 500,000) and getting up fees (Kshs. 166,666) was justified, considering the case's lack of complexity and the absence of a full trial. The applicant argued the fees failed to account for the novelty and labor involved in defending the petition dismissed for non-compliance with the Election Act.
- The respondent asserted the application was res judicata, as the court had already denied a fresh taxation. The court rejected this, distinguishing the reference out of time from a review, and affirmed it would reassess the taxing master's discretion under Rule 11.
- The court determined if the applicant demonstrated new and important evidence to warrant review of the taxation ruling. The petitioner opposed, citing res judicata, while the court clarified that the 10th February 2020 order allowed the reference out of time but did not preclude reassessment under Rule 11 of the Advocates Remuneration Order.
Holdings
The court dismissed the application seeking a review of the taxation ruling, finding that the taxing master's award of Kshs. 500,000 for instruction fees and Kshs. 166,666 for getting up fees was reasonable. It emphasized that the matter did not proceed to a full trial, the petition was dismissed at a preliminary stage, and there was no evidence provided for accommodation and travelling expenses. The court upheld the taxing master's discretion, noting the award struck an equitable balance between fair reimbursement and reasonable bounds, and that interference was not warranted as the discretion was exercised judicially.
Remedies
The court dismissed the application with no order regarding costs. The ruling confirmed that the taxing master's decision on instruction fees and getting up fees was reasonable, and the application for a review was denied.
Legal Principles
The court emphasized that it will only interfere with a taxing master's cost award if the discretion was exercised improperly or the award was clearly wrong. It upheld the taxing master's decision to cap instruction fees at Kshs. 500,000 and getting up fees at Kshs. 166,666, noting the matter did not proceed to a full trial. The ruling reiterated that costs must fairly reimburse the successful party while ensuring reasonable bounds, and that the taxing master's discretion requires judicial reasoning.
Precedent Name
KANU NATIONAL ELECTIONS BOARD & 2 OTHERS V. SALAH YAKUB FARAH
Cited Statute
- Election Act
- Civil Procedure Rules
- Advocates Remuneration Order
Judge Name
H K Chemitei
Passage Text
- The discretion vested in Taxing Master is to allow costs, charges and expenses as appear to him to have been necessary or proper, not those which may objectively attain such qualities, and that such opinion must relate to all costs reasonably incurred by the litigant which also imports a value judgment as to what is reasonable. The discretion to decide what costs have been necessarily or properly incurred is given to the Taxing Master and not to the Court. This discretion must be exercised judicially in the sense that the Taxing Master must act reasonably, justly and on the basis of sound principles with due regard to the circumstances of the case.
- In the premises, this court finds the award reasonable in the circumstances. It is a fair reimbursement and will attract recruits to the profession. Finally, it is not too high or too low to be interfered with.
- On the issue of instruction fees, this court does not find the award of Kshs. 500,000 too low in the circumstances. In fact, the taxing master analysed very well the issues and that the only thing filed by the applicant were the affidavits.