REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

Milimani commercial courts
CIVIL CASE NO. 726 OF 2000

NATIONAL BANK OF KENYA LTD ……………………………………………PLAINTIFF

Versus
PATRICK SIMIYU KIMOI …………………………………………………..DEFENDANT

PLAINTIFF/RESPONDENTS SUBMISSIONS ON THE

DEFENDANT/APPLICANT’S BILL OF COSTS

Pursuant to the Consent of the Parties recorded on the 9 th May 2006

May it please Your Honour, I wish to submit on behalf of the

Plaintiff/Respondent as follows:-

By virtue of a Consent Order recorded before this Honourable Court on the 9 th

May 2006, which stated that in the Defendant’s Bill of Costs dated 31 st March
2006:
(a) The following items were adopted: Items Number 3, 6, 8, 9, 11, 12, 14,
16, 18, 23, 24, 33, 34 and 35.
(b) The following items had these sums taxed off therefrom:
(i) Item Number 4(a) Kshs. 435/=
(ii) Item Number 5 Kshs. 30/=
(iii) Item Number 7 Kshs. 90/=
(iv) Item Number 25 Kshs. 7,000/=
(v) Item Number 29 Kshs. 90/=
(vi) Item Number 30 Kshs. 7,000/=

Subsequently, I submit on the remaining items and pray that they be taxed off
as stated herein after.

Your Honour, the Defendant’s Bill of Costs is to be Taxed in accordance with

the provisions of Schedule VI of the Advocates Remuneration Order, hence I
refer to Rules cited there under.

The Plaintiff/Respondent opposes this Bill of Costs on five salient aspects

thereof, which are:

1. Instruction Fees - Item number 1;

2. Getting-Up Fees - Item number 2;
3. Court Attendance Fees - Item numbers 10, 13, 15, 19, 20, 21, 22,
26, 27 and 32;
4. Miscellaneous Disbursements -Item number 38 and
5. Others - Item numbers 4, 17, 28, 31, 36 AND 37

And I submit on these issues as follows:

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1. INSTRUCTION FEES - ITEM NUMBER 1

The Plaintiff seeks to have the Instruction Fees taxed off by Kshs. 244,603.20
to the minimum amount allowed under Rule 1(b) of Schedule VI on the basis
that the subject of this suit is the recovery of Kshs. 1,026,453 and interest
thereon by the Plaintiff from the Defendant; which claim the Defendant merely
defended without making any counter-claim or even all alleging in is pleading
that the subject of dispute between himself and the Plaintiff had a monetary
value in excess of the claimed Kshs. 1,026,453

The Defendant claims Kshs. 300,000 under item number 1 in its Bill on
account of Instruction Fees, whereas Rule 1(a) provides for a minimum of
Kshs. 55,396.80. Hence, the Defendant contends that:
 The Defendant should base his fee on the claim for Kshs. 1,026,453, and
not on any other figures that would entitle him to Kshs. 300,000 as the
basic Instruction Fees.
 That the Taxing Officers should exercise his discretion and Taxing Off
this item to the minimum fees, or even below the minimum fee; and
 That the Taxing Officer should not award an amount above the basic
minimum Instruction Fees as the Defendant/Applicant does not in any
way deserve the same.

For which the Plaintiff/Respondents submits on the following Points of

Law governing Instruction Fees

In support of which legal position the Plaintiff/Respondent relies on such case

law (Authorities) as is cited herein below and a copy thereof filed herewith:

a) That the Taxing Officer should use either the value of the subject matter
as provided in the pleadings or to any other amount ascribed to by the
trial Judge when he gave an order for costs, but the Taxing Officer
should not import maters into his assessment of costs due to a party
that are not contained in the judgment or order of costs.

Authorities on this:
1. L. Z Engineering Construction Ltd. v Trade Bank Ltd.,

Yaya Towers Ltd. And The Deposit Protection Fund

Nairobi HCCC No. 3791 of 1993

C. K. Njai, Principal Deputy Registrar

2. The Attorney General v Kenya Commercial Bank Ltd.

Nairobi HCCC No. 329 of 2001

J. W. Mwera J.

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 3. Anne Augusta M Lusaka v Ruth Awinja
Nairobi Milimani HCCC No. 1404 of 2001

T Mbaluto J

The Plaintiff submits that the value to be used herein is the claim for
Kshs. 1,026,453 as contained in the Plaint.

b) That in the event that the Taxing Officer considers enhancing the
Instruction Fee above the basic minimum, then he can do provided that
it does not cause an injustice.

Authorities on this:
1. Danson Mutuku Muema v Julius Muthoka Muema and Ano.

Machakos HCCA No. 6 of 1991

J. W. Mwera J.

2. Tononoka Steels Ltd. v PTA Bank Ltd.

Nairobi HCCC No. 267 of 1998

M. ole Keiwua J.

The Plaintiff/ Respondent contends that Kshs. 300,000 as the basic

Instruction Fees, or any such other amount far above the minimal Kshs.
55,397 would cause an injustice to the Plaintiff/Respondent.

c) That the Taxing Officer can reduce the Instruction Fee in the Bill,
provided that it does not cause an injustice.

Authority on this:
1. Tononoka Steels Ltd. v PTA Bank Ltd.

Nairobi HCCC No. 267 of 1998

M. ole Keiwua J.

As a matter of fact, the Taxing Officer should consider reducing the

Instruction Fee to the minimal Kshs. 55,397 as the Defence filed against
this suit was nothing more than a mere denial.

d) That the Taxing Officer can reduce the Instruction Fee below the basic
minimum, provided that it does not cause an injustice.

Authority on this:

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 1. C. T. Patel and others v Barclays Bank D. C. O

[1959] EA 994 High Court of Uganda at Kampala.

Sir Audley McKisack C. J.

Further to the above, the Taxing Officer should consider reducing the
Instruction Fee below the minimal Kshs. 55,397, as the Defence filed
against this suit was nothing more than a mere denial, not withstanding
that the suit was dismissed for inconsistency in the evidence adduced by
the Plaintiff.

e) That the Taxing Officer should consider the following factors before
deciding to increase the Instruction Fee above the basic minimum:
(i) Exercise of discretion as a rule should be accompanied by the
reasoning behind it. It may as well be just and fair to set aside
unexplained exercise of discretion.

Authority on this:
Danson Mutuku Muema v Julius Muthoka Muema and Ano.

Machakos HCCA No. 6 of 1991

J. W. Mwera J.

(ii)
 Instruction fees are earned the moment a plaint or a defence
is filed
 The instruction fee is not dependent on the period taken to
determine the matter finally for the time taken in the course
of the case hearing or argument is a matter to be separately
remunerated.
 A taxing master can increase or reduce the scale fee on
discretion as long as the variation is not so big that it
occasions injustice to the appellant.

Authority on this:
Tononoka Steels Ltd. v PTA Bank Ltd.

Nairobi HCCC No. 267 of 1998

M. ole Keiwua J.

(iii) Enhancing the instruction fee because of “good research”

(which is no more than what is expected of an advocate) is
proceeding on a wrong principle

Authority on this:
First American Bank of Kenya Ltd v G.P. Shah, P.J Shah and D.P. Shah

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 Nairobi Milimani HCCC 2255 of 2000

A. G. Ringera J.

(iv)
 It is not open for the taxing master to imagine how much
time is spent in the matter the subject of taxation.
 Taking instructions and filing a defence in view of absence
of further pleadings proceedings and/or judgment cannot
be termed as “strenuously defending”
 The sole test to determine instruction fees is the nature
character and substance of the claim and the gravity of the
issues of fact and law involved in the proceedings of the
court, the guideline to this is first and foremost the
judgment of the court.
 Instruction fees cover the taking of instructions and
advising thereon, the application of the law to the facts, the
preparation of a mater for hearing, and the actual hearing.
 A taxing officer should curb inflated bills to keep legal
services affordable. (emphasis mine)

Authority on this:
Murgor & Murgor Advocates –Vs- The Central Bank of Kenya & Joseph
Kittony (sued as the Receiver-Manager of Grand Regency Hotel)
Nairobi H. C. Misc. App. No. 694 OF 1998

On this issue of Instruction Fees, It is our submission that the

claim was a simple debt collection suit, and the Defence filed in
thereto a mere denial, hence there do not arise the factors cited
above that can justify the increment of the Instruction Fee above
the minimum provided by law, which is Kshs. 55,397, either at all
or substantially.

2. GETTING UP FEES - ITEM NUMBER 2

Rule 2 provides for an amount not less than one-third of the Instruction Fees,
yet the Defendant/Applicant claims one-half of the Instruction Fees.

For which the Plaintiff/Respondents submits on the following Points of

Law governing Getting Up Fees

Despite the fact that the Law states that it cannot be reduced below the
minimum, there is also no justification for raising it above the minimum one-
third.

Authority on this:

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Murgor & Murgor Advocates –Vs- The Central Bank of Kenya & Joseph Kittony (sued as
the Receiver-Manager of Grand Regency Hotel) Nairobi H. C. Misc. App. No. 694
OF 1998

Rule 2(i) provides that it should not be increased above the minimum amount if
the preparation entailed what was already done during the taking of
instructions.

It is our submission that the minimal statutory one-third of the Instruction

Fees be applied, which is that at the minimum Instruction Fees of Kshs.
55,396.80, the Getting Up Fees would be a minimum of Kshs. 18,465.60.

3. COURT ATTENDANCE FEES - ITEMS NUMBERS 10, 13, 15, 19,

20, 21, 22, 26, 27 and 32

Rule 7 provides a lower and Higher scale based on time. However the
Defendant/Applicant’s claim of the highest amounts provided for hereunder
have no justification, and some claims are even fictitious and hence should be
Taxed Off as per the record of this Honourable Court.

For which the Plaintiff/Respondents submits on the following Points of

Law governing Higher Scale Fees

The higher scale of costs in the high court is only applicable to attendances,
and further that it is at the discretion of the Taxing Officer

L. Z Engineering Construction Ltd. v Trade Bank Ltd.,

Yaya Towers Ltd. And The Deposit Protection Fund
Nairobi HCCC No. 3791 of 1993
C. K. Njai, Principal Deputy Registrar

Questions of Fact on Court Attendance by Counsel for the Defendant.

I wish to refer this Honourable Court to the Coram for attendance on the
Record, and having looked at the attendances listed in items numbers 10, 13,
15, 19, 20, 21, 22, 26, 27 and 32 and have noted and state the following:

a) That in all instances except for Items number 27 and 32, the Defendant
claims for full day court attendance on the Higher scale of 7,200. The
Taxing Officer should in these instances apply the half-day rate on the
lower scale, as that is the duration that the trials usually take.
b) That in items numbers 22, the Defendant claims for an hour’s
attendance on the Higher scale of Kshs. 1,500 whereas the matter was
merely a mention lasting a few minutes, for which we submit that the
Court should Tax it at Kshs. 600, and therefore Kshs. 900 be Taxed Off.
c) In other instances when no Counsel attended, the Defendant would not
be entitled to costs, since a litigant’s attendance to court (if at all) should

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 not be remunerated under the Advocates (Remuneration) Order. Only an
advocate, a witness, an interpreter or such can be remunerated.

Authority on this:
Danson Mutuku Muema v Julius Muthoka Muema and Ano.
Machakos HCCA No. 6 of 1991
J. W. Mwera J.

d) The Plaintiff/Respondent refers to the attendance on the Record during

the conduct of the entire suit and submits that sums claimed under the
following items should be Taxed Off on account of irregularities:
(i) Item 10 - The Defendant claims for a full-day attendance on the
higher scale yet on that day the trial did not proceed because
the Counsel for the Defendant was ailing and did not attend
court. An amount of Kshs. 7,200 should be Taxed Off;
(ii) Item 13 – The Defendant claims for a full-day attendance on the
higher scale yet on that day the trial did not proceed because
the Defendant was not in the frame of mind to testify. An
amount of Kshs. 6,000 should be Taxed Off;
(iii) Item 15 – The Defendant claims for a full-day attendance on the
higher scale yet on that day the trial did not proceed because
the matter was not reached on the cause list; the judge had too
much work. An amount of Kshs. 2,400 should be Taxed Off;
(iv) Item 19 – The Defendant claims for a full-day attendance on the
higher scale yet without any justification, as that day the trial
did not proceed as expected. An amount of Kshs. 4,800 should
be Taxed Off;
(v) Item 20 - The Defendant claims for a full-day attendance on the
higher scale yet on that day the trial did not proceed because
the Counsel for the Defendant was ailing and did not attend
court. An amount of Kshs. 7,200 should be Taxed Off;
(vi) Item 21 – This is a repetition of Item 20; the Record will confirm
that there was a hearing on 19 th September 2005, so with the
benefit of doubt that if this is what they intended to refer to but
typed 19/01/05 instead of 19/09/05, the Defendant claims for
a full-day attendance on the higher scale yet on that day the
matter was not concluded because the Defendant was ailing
and did not come to testify. An amount of Kshs. 4,800 should
be Taxed Off;
(vii) Item 26 – there was no such allocation of this matter before any
court on the stated date. The matter was last in court on 9 th
December 2005 for filing of submission and was allocated for
the reading of the judgment on the 6 th March 2006. The counsel
for the Defendant did not attend this mention of 28 th November
2005, and neither did he send counsel to hold brief. An amount
of Kshs. 900 should be Taxed Off; and
(viii) Item 27 –the Defendant claims fees for half-day attendance on
the higher scale yet his counsel never attended court on this
day, and also never sent counsel to hold his brief. An amount of
Kshs. 3,600 should be Taxed Off.
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 (ix) Item 32 –the Defendant claims fees for half-day attendance on
the higher scale of Kshs. 3,600 whereas the matter merely
consists of two mentions lasting a few minutes, for which we
submit that the Court should Tax it at Kshs. 600 per mention,
and therefore Tax Off Kshs. 2,400.
On account of these irregular claims, the said items should be Taxed
Off by the amounts submitted.

4. MISCELLENEOUS DISBURSMENTS - ITEM NUMBER 38

This item described as out of pocket expenses at the rate of Kshs. 8,000 for 6
hearings has no legal basis under Schedule VI as provision has already been
made for Advocate’s Fees on account of Court Attendances in No. 3 above.
Thus, Item number 38 should be disallowed in its entirety and an amount of
Kshs. 48,000 should be Taxed Off therefrom.

5. OTHERS - ITEM NUMBERS 4, 17, 28, 31, 36 AND 37

The Plaintiff/Respondent, on a second consideration, does not oppose these

items, and submits that they be Taxed as prayed, save for number 17 which
should be Taxed Off by Kshs. 15 in accordance with Rule 8.

DISCREPANCY IN THE TOTAL SUM OF THE BILL OF COSTS

The totals of the Defendant’s Bill of Costs is not Kshs. 572,145 as claimed but
rather adds up to Kshs. 570,930, and should be adjusted accordingly before
the amounts to be Taxed Off therefrom are deducted accordingly.

TOTAL AMOUNTS TO BE TAXED OFF

In conclusion the Plaintiff/Respondent prays that the Defendant’s Bill of Costs

for Kshs. 572,145 (and as amended to Kshs. 570,930) be Taxed Off by Kshs.
478,996 to Kshs. 91,934.

Reconciliation of Bill of Costs

ITEM AMOUNT CLAIMED AMOUNT TO BE BY CONSENT OR

TAXED OFF PURSUANT TO
SUBMISSIONS
1 300,000 244,603 Submissions
2 150,000 131,533 Submissions
3 525 0 Consent
4 60 0 Submissions
4 (a) 525 435 Consent
5 60 30 Consent
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 6 525 0 Consent
7 135 90 Consent
8 105 0 Consent
9 45 0 Consent
10 7,200 7,200 Submissions
11 45 0 Consent
12 45 0 Consent
13 7,200 6,000 Submissions
14 45 0 Consent
15 7,200 2,400 Submissions
16 45 0 Consent
17 45 15 Submissions
18 45 0 Consent
19 7,200 4,800 Submissions
20 7,200 7,200 Submissions
21 7,200 4,800 Submissions
22 1,500 900 Submissions
23 600 0 Consent
24 270 0 Consent
25 8,000 7,000 Consent
26 900 900 Submissions
27 3,600 3,600 Submissions
28 180 0 Submissions
29 135 90 Consent
30 8,000 7,000 Consent
31 45 0 Submissions
32 3,600 2,400 Submissions
33 75 0 Consent
34 100 0 Consent
35 75 0 Consent
36 75 0 Submissions
37 325 0 Submissions
38 48,000 48,000 Submissions
TOTALS
(Kshs.) ]570,930 478,996

CONCLUSION
Your Honour I wish to summarise my submissions that the Defendant has
failed to prove that he is entitled to such amounts as claimed in his Bill of
Costs, which amounts would definitely cause an injustice upon the
Plaintiff/Respondent; hence, these claims must be Taxed Off as prayed herein.

I urge your Honour to Tax the Defendant’s Bill of Costs dated 31 st March 2006
in favour of the Plaintiff/Respondent as per these Submissions.

9
DATED at NAIROBI this day of 2006

EUNICE KITCHE-ODUOR (MRS) ADVOCATE

RACHUONYO & RACHUONYO
ADVOCATES FOR THE PLAINTIFF/RESPONDENT

DRAWN & FILED BY:-

Rachuonyo & Rachuonyo
Advocates
Capitol Hill Towers
5th Floor
P O Box 42932-00100
NAIROBI

TO BE SERVED UPON:-

Ocharo Kebira & Company

Advocates
Catholic Diocese Offices
Ground Floor
P O Box 208
BUNGOMA

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