Automated Summary
Key Facts
Wells Fargo Limited challenged the Taxing Master's decision to award separate instruction and getting up fees for each claimant in consolidated cases (Causes No 388 of 2014 and 12 others). The court found the Taxing Master erred by deconsolidating taxation on these items, citing established precedents like Grace Wangui Ngenye v Wilfred Kiboro [2013] eKLR and Warutere & Associates v Robert Kang'ethe Baar [2018] eKLR, which hold that costs in consolidated matters should be apportioned, not charged separately. The ruling was set aside, and the case remitted for re-taxation.
Issues
- The court addressed the proper taxation of instruction fees in consolidated legal matters. The Applicant argued that instruction fees should be taxed once and apportioned among claimants in consolidated cases, rather than being taxed separately for each cause. The court agreed, finding the Taxing Master's decision to tax fees individually erroneous, and cited prior cases like Grace Wangui Ngenye v Wilfred Kiboro, which established that separate taxation in consolidated suits leads to unjust enrichment.
- The court considered the taxation of getting up fees in consolidated matters. The Applicant contended that these fees should also be taxed once for all consolidated causes, not separately. The court upheld this position, referencing the Grace Wangui Ngenye case to affirm that consolidated suits should not result in multiple charges for getting up fees, as this would constitute unjust enrichment.
- The court examined the correct Remuneration Order to apply for calculating costs. The Applicant claimed the 2009 Remuneration Order should govern, but the court ruled that the 2014 Remuneration Order was in effect at the time the Bill of Costs was filed, thus upholding the Taxing Master's decision on this specific point.
Holdings
- The court determined that the applicable Advocates (Remuneration) Order for taxation was the 2014 version, not the 2009 Order, based on the filing date of the Bill of Costs. The Taxing Master correctly applied the 2014 Order, and this aspect of the ruling is upheld.
- The court set aside the ruling by Hon D.O Mbeja and remitted the Bill of Costs for re-taxation, finding that the Taxing Master erred by deconsolidating the taxation of instruction and getting up fees in consolidated matters. The court emphasized that instruction and getting up fees in consolidated cases should be taxed once and apportioned among claimants, not charged separately for each claim. This aligns with established jurisprudence, including decisions in Grace Wangui Ngenye v Wilfred Kiboro and Warutere & Associates v Robert Kang'ethe Baar, which hold that separate taxation in consolidated suits leads to unjust enrichment.
Remedies
- The ruling delivered by Hon D.O Mbeja on 16th February 2024 is set aside.
- The Bill of Costs dated 2nd October 2018 is remitted for re-taxation before another Taxing Master, other than Hon D.O Mbeja.
Legal Principles
- Where matters are consolidated, instruction fees and getting up fees must be taxed once and apportioned to claimants based on the value of the judgment. Awarding these fees separately for each consolidated case constitutes unjust enrichment and undermines access to justice. This principle was affirmed in cases such as Grace Wangui Ngenye v Wilfred Kiboro and Warutere & Associates v Robert Kang'ethe Baar.
- The Taxing Master's decision to allocate instruction fees and getting up fees to each claimant in consolidated matters was deemed unconscionable. This practice allows for unjust enrichment by enabling multiple charges for a single consolidated effort, contrary to established legal authorities which emphasize fair compensation for consolidated suits.
Precedent Name
- James Nyang'ire & others v Attorney General
- Warutere & Associates v Robert Kang'ethe Baar & others
- Grace Wangui Ngenye v Wilfred Kiboro & another
Cited Statute
- Advocates (Remuneration) Order, 2014
- Remuneration Order, 2009
Judge Name
Linnet Ndolo
Passage Text
- "...Advocates should avoid filing multiple suits where the cause of action is joint and the relief is generally the same and only consolidate them for hearing so as to obtain separate instruction fees on taxation. This is a practice that should be deprecated as it enhances the possibility of making access to justice expensive and a preserve of the rich. I decline the invitation to interfere with the Taxing Officer's decision to apportion instruction fees as she did holding that the costs of consolidated suits should be apportioned and the awarding of instruction fees for each individual suit would amount to unjust enrichment. I concur with her reasoning and uphold it as a sound exposition and application of the law on costs in consolidated suits."
- 17. In the result, I find and hold that the Taxing Master fell into error by deconsolidating taxation on the items on instruction fees and getting up fees.
- 19. Finally, the ruling delivered by Hon D.O Mbeja on 16th February 2024 is set aside and the Bill of Costs dated 2nd October 2018 is remitted for re-taxation before another Taxing Master, other than Hon D.O Mbeja.