Kenya Airports Authority v Otieno Ragot and Company Advocates (Petition E011 of 2023) [2024] KESC 44 (KLR) (2 August 2024) (Judgment)

Kenya Airports Authority v Otieno Ragot and Company Advocates (Petition E011 of 2023) [2024] KESC 44 (KLR) (2 August 2024) (Judgment) Neutral citation: [2024] KESC 44 (KLR) REPUBLIC OF KENYA IN THE SUPREME COURT OF KENYA PETITION E011 OF 2023 MK KOOME, CJ & P, MK IBRAHIM, SC WANJALA, N NDUNGU & I LENAOLA, SCJJ AUGUST 2, 2024 BETWEEN KENYA AIRPORTS AUTHORITY ....................................................... APPELLANT AND OTIENO RAGOT AND COMPANY ADVOCATES ........................ RESPONDENT (Being an appeal from the Judgment of the Court of Appeal at Nairobi (Ouko (P), Gatembu & Murgor, JJ. A) delivered on 19th May, 2021 in Civil Appeal No. 39 of 2017) Discretion in taxation of instruction fees under the Advocates Remuneration Order Reported by John Ribia Civil Practice and Procedure – appeals – appeals before the Supreme Court – pleadings – where a party raised issues that were not certified as matters of general public importance - whether the Supreme Court could pronounce itself on new issues beyond the parameters which were certified as matters of general public importance – Constitution of Kenya, article 163(4)(b). Advocates – costs – assessment of costs – role of a taxing officer - whether the Taxing Officer, as a judicial officer, performed the mandate of taxation as a procedural technicality - whether failure to evaluate and determine disputed items during taxation contravened rule 16 of the Advocates Remuneration Order, thereby compromising the fairness and justice of the assessment process - Advocates Remuneration Order, 2006 (cap 16, Sub Leg) rule 16. Advocates – costs – assessment of costs – Advocates Remuneration order - what was the purpose of the Advocates Remuneration Order – Advocates Act (cap 16) section 2, 36, 51(2); Advocates Remuneration Order, 2006 (cap 16, Sub Leg) rules 2, 3, and 50. Advocates – costs – assessment of costs – party to party costs - what was the proper basis for determining the value of the subject matter for purposes of calculating instruction fees under Paragraph 1 of Schedule 6A of the Advocates Remuneration Order (ARO), particularly in light of whether the suit was at the pleading stage, had proceeded to judgment, or had been settled - whether the absence of specific particulars or valuation of the subject matter in the pleadings prevents the Taxing Officer from accurately assessing reasonable costs, particularly when the trial had not been concluded to determine the value definitively - whether a claim or amount pleaded in a suit that https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/44/eng@2024-08-02 1 was struck out at the preliminary stage could be used as the value of the subject matter for purposes of taxation of instruction fees, despite the fact that the claim had not been ascertained or determined - Constitution of Kenya, 2010 article 48 and 50; Advocates Act (cap 16) section 2, 36, 51(2); Advocates Remuneration Order, 2006 (cap 16, Sub Leg) Schedule 6 part A. Advocates – costs – assessment of costs –  Advocate to Client costs - whether the instruction fees in Advocate-Client costs should be determined by automatically increasing the Party-Party instruction fees taxed under Shedule6A of the Advocates Remuneration Order by one-half (50%), or whether the Taxing Officer must exercise discretion in assessing such fees - whether the Taxing Officer was required to exercise judicial discretion when assessing Advocate-Client instruction fees under Schedule 6B, guided by Part A, rather than applying a rigid mathematical formula - Constitution of Kenya, 2010 article 48 and 50; Advocates Act (cap 16) section 2, 36, 51(2); Advocates Remuneration Order, 2006 (cap 16, Sub Leg) Schedule 6 part B. Words and Phrases – judicial discretion – definition - The exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court’s power to act or not act when a litigant is not entitled to demand the act as a matter of right - The Black’s Law Dictionary, 8th Ed. (2004) p. 1406. Brief facts In 2009, 54 plaintis sued Kenya Airports Authority (KAA), claiming compulsory acquisition of their land near Kisumu International Airport without adequate compensation. They claimed Kshs. 13,932,000,000 as special damages. KAA, represented by Otieno Ragot & Co. Advocates, led a defense and sought to strike out the suit. The High Court struck out the suit on June 24, 2010, for procedural non-compliance. The respondent led a Party-Party Bill of Costs, taxing instruction fees based on the unsubstantiated claim of Kshs. 13,932,000,000. The costs were taxed at Kshs. 151,650,000. The respondent then sought Advocate-Client costs, relying on the taxed Party-Party instruction fees. The Taxing Ocer assessed instruction fees at Kshs. 5,000,000, exercising discretion due to the lack of a conclusive subject matter value.  The High Court upheld the Taxing Ocer's decision. The Court of Appeal, by majority, ruled that the Taxing Ocer lacked discretion and must increase Party-Party costs by one-half, setting instruction fees at Kshs. 196,044,750.50. KAA appealed to the Supreme Court, arguing that the Taxing Ocer retains discretion under the Advocates Remuneration Order to assess reasonable costs. Issues i. Whether the Supreme Court could pronounce itself on new issues beyond the parameters which were certied as matters of general public importance. ii. What was the purpose of the Advocates Remuneration Order? iii. Whether the Taxing Ocer, as a judicial ocer, performed the mandate of taxation as a procedural technicality. iv. Whether failure to evaluate and determine disputed items during taxation contravened rule 16 of the Advocates Remuneration Order, thereby compromising the fairness and justice of the assessment process. v. What was the proper basis for determining the value of the subject matter for purposes of calculating instruction fees under Paragraph 1 of Schedule 6A of the Advocates Remuneration Order (ARO), particularly in light of whether the suit was at the pleading stage, had proceeded to judgment, or had been settled? vi. Whether the absence of specic particulars or valuation of the subject matter in the pleadings prevents the Taxing Ocer from accurately assessing reasonable costs, particularly when the trial had not been concluded to determine the value denitively. vii. Whether a claim or amount pleaded in a suit that was struck out at the preliminary stage could be used as the value of the subject matter for purposes of taxation of instruction fees, despite the fact that the claim had not been ascertained or determined. https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/44/eng@2024-08-02 2 viii. Whether the instruction fees in Advocate-Client costs should be determined by automatically increasing the Party-Party instruction fees taxed under Shedule6A of the Advocates Remuneration Order by one-half (50%), or whether the Taxing Ocer must exercise discretion in assessing such fees. ix. Whether the Taxing Ocer was required to exercise judicial discretion when assessing Advocate-Client instruction fees under Schedule 6B, guided by Part A, rather than applying a rigid mathematical formula. Held 1. When interest on taxed costs accrued was never raised or delineated as a matter of general public importance. A litigant could not expand such an appeal or introduce new issues beyond the parameters pursuant to which it was certied or admitted. The Supreme Court declined the appellant’s invitation to pronounce itself on taxed costs. 2. The Advocates Remuneration Order related to the remuneration of advocates. Rule 2 thereof related to assessment of costs incurred in a contentious matter which could be reimbursed to a successful party/litigant by the other party. It prescribed and regulated the remuneration of advocates in respect of professional business undertaken, and the recompense of costs/expenses incurred by a successful party in a suit. The overall objective was to prevent exploitation of parties to a suit/transaction with regard to remuneration of advocates and compensation of costs or expenses incurred by a successful party as well as maintain the standards of the legal profession. It was to ensure that fees/costs paid to an advocate and a successful party were reasonable. What amounted to reasonable costs could only be determined on a case-by-case basis. 3. Section 36 of the Advocates Act and rule 3 of the Advocates Remuneration Order (ARO)proscribed an advocate from charging or accepting, otherwise than in part payment, any fee or other consideration in respect of professional business which was less than the remuneration prescribed in the Remuneration Order. It sets out standards to regulate the profession from being undermined by undercutting. To ensure the objective of the ARO was met, a Taxing Ocer, who may be the Registrar or Deputy Registrar of the High Court, was tasked with the role of assessing/taxing costs or fees under the Advocates Remuneration Order. 4. Schedule 6A of the ARO provided for Party-Party costs, that was, the manner in which costs awarded to a successful party as against another party should be assessed/computed/taxed. The essence of such costs was to ensure a successful litigant/party received a fair reimbursement/recompense for the costs/ expenses he/she has had to incur on account of a suit. 5. The subject matter of the suit in issue should be identied rst, and then the value thereof determined. Paragraph 1 of Schedule 6A of the ARO stipulated that the value of the subject matter could be determined from the pleading, judgment or settlement of the parties. That meant that the value of the subject matter could be determined from the pleadings or judgment or settlement of the parties. The basis for determining the subject matter value for purposes of instruction fees was wholly dependent on the stage at which the fees were being taxed. Where it happened before judgment, it was the pleadings that formed the basis for determining subject value. Once judgment had been entered, and for what seemed to us to be an obvious reason, recourse would not be had to the pleadings since the judgment determined conclusively the value of the subject matter as a claim, no matter how pleaded, gets its true value as adjudged by the court. Where, however, a suit was settled, then, from a literal and practical reading of the provision, the subject matter value must be sought by reference, in the rst instance, to the terms of the settlement. Just as one would not start with the pleadings in the face of a judgment, it was indubitable that one could not start with the pleadings where there was a settlement. 6. Whilst the determination of the value of subject matter from a judgment and settlement of the parties was quite straight forward, the determination from pleadings was not. The determination of the value of the subject matter, could be dicult, for instance, where the pleadings/suit was struck out at a https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/44/eng@2024-08-02 3 preliminary stage, such as in the instant case, and the value could only be determined/ascertained upon the conclusion of a trial. 7. The original plaintis did not provide any particulars or the value of the parcels that were allegedly compulsorily acquired by the appellant. That information was necessary as a guide to the Taxing Ocer in the assessment of reasonable costs. The original plaintis simply pleaded or claimed a sum of Kshs.13,932,000,000 as special damages and indicated that the particulars thereto would be availed during the hearing. Therefore, the value of the subject matter could only be determined upon the conclusion of the trial which never happened. 8. A claim in a suit which was struck out at the preliminary stage did not ipso facto render that claim or amount pleaded therein without more the value of the subject matter. The position still remained that the amount therein had not been ascertained or determined, and as such, it could not be applied as the value of a subject matter in a disputed taxation. The application of such a claim or amount as the value of the subject matter would go against the rationale that the fees/costs paid to an advocate and a successful party should be reasonable. Consequently, even where the amount claimed in a pleading which was struck out by a court, as in the instant appeal, the said amount would not act as the value of the subject matter when it came to taxation of instruction fees. 9. Where the value of the subject matter could be determined, the Taxing Ocer was required to set out the basic fees prescribed under Schedule 6 Part A. Similarly, where the Taxing Ocer assessed instruction fees based on the nature of a matter as stipulated in Paragraph 1, for instance like, bankruptcy proceedings or matrimonial causes she/he was required to set out the basic fees prescribed thereunder. It was after setting out the basic fees that the Taxing Ocer could exercise his/her discretion to increase or (unless otherwise provided, like in matrimonial causes) reduce the said basic fees. In exercising such unfettered discretion, the Taxing Ocer was required to do so judiciously and not whimsically. 10. In the event that value of the subject matter of a suit could not be determined from either the pleadings, judgment or settlement by the parties, and the nature of the said suit was not provided for in Paragraph 1 of Schedule 6 A, proviso thereunder empowered a Taxing Ofcer to exercise his/her discretion in assessing instruction fees for such a suit. 11. Schedule 6 Part B relates to Advocate-Client costs, it provided for the manner in which advocates costs/fees should be assessed/taxed. Once instruction fees in Party- Party costs in a particular suit were assessed/taxed under Part A, and a certicate of costs to that eect was issued, the assessment of instruction fees in Advocate-Client costs in the same suit simply required the application of the formula stipulated under Part B, that was, the fees, the instruction fees, taxed or ascertained under Part A increased by one-half. Besides, the impugned majority judgment found that where Party-Party costs were taxed under Part A, the Taxing Ocer was devoid of any discretionary power when it came to the assessment of instruction fees in Advocate-Client Bill of Costs. 12. The Taxing Ocer was required to take into account Part A. That did not mean that such a Taxing Ocer was simply to increase the instruction fees determined/ascertained in Part A by one-half or 50%. That was because rule 16 of the Advocates Remuneration Order provided that notwithstanding anything contained in the Order, on every taxation the Taxing Ocer may allow all such costs, charges and expenses as authorized in the Order as shall appear to him to have been necessary or proper for the attainment of justice or for defending the rights of any party. Rule 16 should be read together with section 2 of the Advocates Act, which interpreted the word costs as including fees, charges, disbursements, expenses and remuneration. 13. Judicial discretion was the exercise of judgment by a judge or court based on what was fair under the circumstances and guided by the rules and principles of law; a court’s power to act or not act when a litigant was not entitled to demand the act as a matter of right. https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/44/eng@2024-08-02 4 14. The proper interpretation of Schedule 6B was that in assessing fees thereunder, including instruction fees, a Taxing Ocer was required to exercise his/her discretion guided by the prescribed scale of fees in Part A. That did not mean, as the impugned majority judgment found, that a Taxing Ocer was simply to apply the mathematical formula to the instruction fees ascertained in the taxed Party-Party costs. Failure to evaluate a disputed item under taxation and determine it judiciously was contrary to the clear provisions of rule 16 of the Advocates Remuneration Order. A Taxing Ocer being a judicial ocer exercising a judicial mandate could not be said to be performing such mandate mechanically or merely as a formality. 15. An advocate would be entitled to payment of a reasonable fee which is commensurate with the work done. What was a reasonable fee in the circumstance could only be adjudicated by a taxing master by application of his discretion. If the instruction fee in a certicate of Party-Party costs was disputed when it came to the assessment of the same in Advocate-Client costs under Schedule 6B, the Taxing Ocer should subject the disputed items to evaluation and judicial determination according to the circumstances of each case. The instruction fees in the Party-Party certicate of costs once disputed must be ascertained and the certicate could not be applied hook, line and sinker in the assessment of instruction fees under Part B. 16. Section 51(2) of the Advocates Act stipulated that the certicate of the Taxing Ocer by whom any bill had been taxed shall, unless it was set aside or altered by the court, be nal as to the amount of the costs covered thereby. The intention of the Legislature was that the costs ascertained by the certicate of taxation or costs, were nal with respect to costs covered. A certicate of taxed Party-Party costs was nal on the costs/fees ascertained in the Party-Party costs. While instruction fees ascertained thereunder were not per se binding, when it came to the assessment of Advocate-Client costs, a Taxing Ocer was required to consider the matter and where he/she was satised that it was a true representation of the work done by the advocate, it could be applied in the assessment of instruction fees under Schedule 6B. Similarly, the Taxing Ocer could exercise her/his discretion and depart from the ascertained instruction fees and give reasons for such departure. 17. The Taxing Ocer and the High Court found the value of the subject matter was not ascertainable from the amended plaint that was struck out for being incompetent. The amended plaint had indicated a sum of Kshs.13,932,000,0000 as a specic claim and the particulars of the claim were to be provided during the hearing, which did not take place. The particulars of the suit parcels of land that were allegedly compulsorily acquired, and the developments were not provided by the original plaintis. Therefore, that the value of the subject matter was unascertainable. 18. The impugned majority judgment of the Court of Appeal was erroneous as it was predicated on the nding that the assessment of instruction fees under Schedule 6B of the Remuneration Order was simply arithmetical devoid of any exercise of discretion by the Taxing Ocer. It was imperative for the Taxing Ocer, as indeed it was done, to interrogate the reasonableness of the Advocate-Client Bill of Costs especially the instruction fees and not to automatically apply the certicate of the Party-Party costs and to increase the sum taxed by one-half. 19. The Supreme Court agreed with the reasoning of the High Court and the Taxing Ocer that despite the original plaintis claiming compensation of Kshs.13,932,000,000, which was in the nature of special damages, they never proved the same. Special damages were required to not only be pleaded but also specically particularized and proved. The primary suit having been struck out at the preliminary stage for being a non-starter, the special damages sought were not established or ascertained. Therefore, the basis of the special damages sought remained a mirage. In the circumstances, the application of the compensation sought as the value of the subject matter was tantamount to basing the instruction fees on an unsubstantiated and indeterminate gure. 20. There were no justiable reason(s) to warrant the majority decision of the Court of Appeal to interfere with the taxation of the instruction fees by the Taxing Ocer. The Taxing Ocer as well as the High https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/44/eng@2024-08-02 5 Court did not in any way err in law or principle, in the assessment of Advocate-Client instruction fees. Moreover, an increase of the instruction fees from Kshs.5,000,000 to Kshs.196,044.750,50 amounted to an impediment to access to justice. Instruction fees ought to take into account the amount of work done by an advocate, the prevailing economic times and should be reasonable to a level where the charges should not impede access to justice Appeal allowed. Orders i. The majority judgment of the Court of Appeal dated May 19, 2021 in Civil Appeal No. 39 of 2017 was set aside. ii. The ruling of the High Court dated February 20, 2017 in HC Misc. Applic. No. 95 of 2011 was confirmed. iii. Each party would bear their own costs of the appeal and cross appeal before the Supreme Court. iv. The sum of Kshs. 6,000 deposited as security for costs upon lodging of this appeal was to be refunded to the appellant. Citations Cases Kenya 1. Bell v Moi & another (Application 1 of 2013) [2013] KESC 23 (KLR) - (Followed) 2. Central Bank of Kenya v Makhecha & Company Advocates Civil Appeal 48  of  2014; [2019] KECA 338 (KLR) - (Explained) 3. First American Bank of Kenya v Shah and Others Civil Suit 2255 of 2000; [2002] KEHC 1277 (KLR) - (Mentioned) 4. Joreth Limited v Kigano & Associates Civil Appeal 66 of 1999; [2002] KECA 153 (KLR); [2002] 1 E.A. 92 - (Explained) 5. Kidero & 4 others v Waititu & 4 others Petition 18  &  20  of  2014 (Consolidated); [2014] KESC 11 (KLR) - (Followed) 6. Law Society of Kenya v Attorney General & another Application 4 of 2019; [2019] KESC 30 (KLR) - (Followed) 7. Moronge & Company Advocates v Kenya Airports Authority Civil Appeal 262  of  2012; [2014] KECA 816 (KLR) - (Distinguished) 8. Muriithi (Suing as the Legal Representative of the Estate of Mwangi Stephen Muriithi) v Janmohamed SC, (Suing as the Executrix of the Estate of Daniel Toroitich Arap Moi) & another Petition 41 of 2018; [2023] KESC 61 (KLR) - (Mentioned) 9. Muthoka , Peter & another v Ochieng & 3 others Civil Appeal 328 of 2017; [2019] KECA 597 (KLR) - (Explained) 10. Njogu & Co Advocates v Kenya National Capital Authority Miscellaneous Application 21 of 2005; [2006] KEHC 901 (KLR) - (Explained) 11. Nyangito & Co Advocates v Doinyo Lessos Creameries Ltd Miscellaneous Case 843  of  2013; [2014] KEHC 5481 (KLR) - (Explained) 12. Otieno, Ragot & Company Advocates v Kenya Airports Authority Application E015  of  2023; [2023] KESC 55 (KLR) - (Followed) 13. Outa v Odoto & 3 others Petition 6 of 2014; [2023] KESC 75 (KLR) - (Mentioned) 14. Rai & 3 others v Rai Estate of & 4 others Petition 4 of 2012; [2014] KESC 31 (KLR) - (Explained) 15. Ratemo Oira & Co Advocates v Magereza Sacco Society Ltd Civil Appeal 75  of  2018; [2019] KECA 302 (KLR) - (Explained) 16. Republic v Ministry of Agriculture & 2 others ex parte Muchiri W’njuguna & 6 others Miscellaneous Application 621 of 2000; [2006] KEHC 3504 (KLR) - (Explained) https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/44/eng@2024-08-02 6 17. W’Njuguna, Samuel Muchiri & 6 others v Minister of Agriculture ? 621  of  2000; [2005] KEHC 2079 (KLR) - (Explained) 18. Westmont Holdings SDN BHD v Central Bank of Kenya & 2 others Petition 16 (E023)  of  2021; [2023] KESC 11 (KLR) - (Followed) South Africa Coetzee v Taxing Master, South Gauteng High Court & another (2010/14197) [2012] ZAGPJHC 175 - (Mentioned) India Reserve Bank of India vs. Peerless General Finance and Investment Co Ltd and Others (1987) 1 SCC 424 - (Explained) Regional Court 1. Premchand Raichand Ltd v Quarry Services of East Africa Ltd (No 3) [1972] EA 162 - (Explained) 2. Thomas James Arthur v Nyeri Electricity Undertaking [1961] EA 492 - (Explained) Texts Garner, BA., (Ed) (2004), Black’s Law Dictionary St Paul Minnesota: Thomson West 8th Edn p 1406 Statutes Kenya 1. Advocates Act (cap 16) sections 2, 36, 51(2) - (Interpreted) 2. Advocates Remuneration Order, 2006 (cap 16 Sub Leg)  rules 3, 7, 16, 50; Schedule 6 parts A, B - (Interpreted) 3. Civil Procedure Rules, 2010 (cap 21 Sub Leg) order 4 rule 2 - (Interpreted) 4. Constitution of Kenya articles 48, 50, 163(4)(b)- (Interpreted) 5. Constitution (Repealed) section 75(2) - (Interpreted) 6. Kenya Airports Authority Act (cap 395) section 34 - (Interpreted) 7. Land Acquisition Act (Repealed) (cap 295) section 29 - (Interpreted) Advocates Mr Martin Munyu and Ms Tabitha Weru for the appellant Mr David Otieno for the respondent JUDGMENT Representation: Mr Martin Munyu & Ms Tabitha Weru for the appellant (Iseme Kamau & Maema Advocates) Mr David Otieno for the respondent (Owiti, Otieno Ragot & Co Advocates) A. Introduction 1. This is an appeal from the judgment and decree of the Court of Appeal at Nairobi (Ouko (P) (as he then was), Gatembu & Murgor, JJA) dated May 19, 2021. Being dissatised with the said judgment, Kenya Airports Authority (the appellant) successfully sought an order before the same court certifying the matter as one that raises matters of general public importance. Pursuant to the leave granted on March 17, 2023, the appellant led the present appeal before this court on April 25, 2023. 2. The appeal is predicated on the provisions of article 163(4)(b) of the Constitution. Principally, the issue(s) of general public importance raised in the appeal revolve around the question of assessment or taxation of instruction fees due to an advocate from a client on account of proceedings before the https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/44/eng@2024-08-02 7 High Court pursuant to Schedule VI of the Advocates Remuneration Order. In particular, it entails a determination of rstly, how instruction fees of an advocate in an Advocate-Client Bill of Costs should be assessed/taxed where the Party-Party Costs relating to the same matter have been assessed, and a certicate of costs issued. Secondly, whether the Taxing Ocer has room to exercise judicial discretion in the assessment of costs depending on the circumstances of each case. B. Background i. Factual history 3. Some 54 individuals (original plaintis) instituted a suit in the High Court at Kisumu, HCCC No 56 of 2009 (primary suit), against the appellant. The crux of their claim was that the appellant had compulsorily acquired their parcels of land which bordered the Kisumu International Airport for expansion of the said airport. They alleged that the appellant had failed to either compensate and/ or adequately compensate them for the parcels, the developments thereon, the inconvenience caused as well as the current and future loss of prots. As a result, through an amended plaint dated 26th February 2010, the original plaintis averred that they were entitled to an average of Kshs 258 million each aggregating to Kshs 13,932,000,000 which they sought as compensation. 4. In turn, the appellant instructed the rm of Otieno, Ragot & Co Advocates, (the respondent) to act for it in the primary suit. Pursuant to the appellant’s instructions, the respondent led an Amended Defence dated March 3, 2010 denying all the allegations by the original plaintis and challenging the competency of the primary suit. Subsequently, the appellant vide a notice of motion dated March 30, 2010 applied for the primary suit to be struck out on two fronts. Firstly, the appellant claimed that contrary to Section 34 of the Kenya Airports Authority Act (cap 395 Laws of Kenya), the original plaintis had not served the appellant’s Managing Director with one month’s written notice of their intention to commence legal proceedings and the particulars of their claim prior to instituting the primary suit. Secondly, that by dint of section 29 of the repealed Land Acquisition Act (cap 295 Laws of Kenya) and section 75(2) of the former Constitution, the Land Acquisition Compensation Tribunal ought to have been the rst port of call for the original plaintis, and only then could the High Court be rightly seized of an appeal against the Tribunal’s decision. 5. By a ruling dated June 24, 2010, Karanja, J. agreed with the appellant and struck out the primary suit with costs. Thereafter, with the intention of having the costs of the suit for the appellant assessed by a Taxing Ocer, the respondent lodged a Party-Party Bill of Costs dated 28th June, 201o in the primary suit pursuant to Schedule VI Part A of the Advocates Remuneration (Amendment) Order, 2006. However, the appellant alleges that the respondent led the said bill without its instructions. Be that as it may, the Party-Party Bill of Costs sought cumulative costs of Kshs 151,658,583. Of signicance, is that out of the aggregate costs, the bill sought Kshs 130,704,900 as instruction fees on the basis that the respondent was engaged to defend the primary suit. 6. The instruction fees sought were based on the compensation of Kshs 13,932,000,000 claimed by the original plaintis. Eventually, the said bill was taxed by a Taxing Ocer on July 15, 2010 at Kshs 151,650,000 and a certicate of costs issued thereto. The respondent did not seek to recover the taxed amount from the original plaintis, instead by a letter dated January 1, 2011 it informed the appellant of the option of levying execution against the original plaintis for the taxed Party- Party costs. However, in the same breath, the respondent also advised the appellant that due to the impecuniosity of the original plaintis, there was a high possibility that the appellant would have to meet the auctioneers’ fees, which would run into millions, even if the execution proved unsuccessful. As at the hearing of this appeal, the taxed Party-Party costs had not been recovered. https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/44/eng@2024-08-02 8 7. It would appear that the respondent by a letter dated July 19, 2010 asked the appellant to settle a fee note of Kshs 227,476,921.38 attached thereto for the services the law rm had rendered. On the appellant’s part, it expressed its dissatisfaction with the amount stated in the fee note which it termed as excessive. This was duly communicated to the respondent and it resulted in a back and forth between the parties without any consensus as evinced by correspondence exchanged from July 19, 2010 to December 29, 2010. Ultimately, the respondent led an Advocate-Client Bill of Costs dated February 24, 2011 pursuant to Schedule VI Part B of the Advocates Remuneration (Amendment) Order, 2006. ii. Litigation History a. At the High Court 8. The Advocate-Client Bill of Costs was led in the High Court vide HC Misc. Civil Cause No 95 of 2011, and the bone of contention was the instruction fees of Kshs 130,696,500 which the respondent indicated was premised on the sum of Kshs 13,932,000,000 sought as compensation by the original plaintis. Before the said bill could be taxed, the appellant on May 13, 2011 lodged a suit in the High Court, HCCC No 68 of 2011, against the respondent. In that suit, the appellant claimed that the respondent’s Advocate-Client Bill of Costs was anchored on an unsubstantiated compensation sought by the original plaintis, and as such, the respondent should not be allowed to benet from an erroneous computation of fees. Towards that end, the appellant sought a declaration that the respondent’s claim for remuneration based on a subject value of Kshs 13,932,000,000 was invalid and unenforceable. Contemporaneously, the appellant also led a Notice of Motion seeking stay of the taxation of the respondent’s Advocate-Client Bill of Costs pending the determination of the suit, which prayer was granted by Ali- Aroni, J (as she then was) in a ruling dated June 30, 2011. Aggrieved by the order granting stay, the respondent led an appeal, Civil Appeal No 35 of 2012, in the Court of Appeal. The Court of Appeal (Maraga, JA (as he then was), Gatembu & Murgor, JJA) by a judgment dated June 18, 2015 found that the learned Judge had usurped the power of the Taxing Ocer by halting the taxation, and set aside the stay orders. 9. The foregoing cleared the way for the taxation of the respondent’s Advocate- Client Bill of Costs, which was placed before a dierent Taxing Ocer (Hon. Mbulikah, Deputy Registrar of the High Court). In considering the bill, the Taxing Ocer framed four issues as arising for her consideration, to wit, was the advocate retained? Is the Advocate-Client Bill of Costs independent from the Party-Party Bill of Costs? What is the value of the subject matter, If any? What are the main principles of taxation? On the rst issue, she found that the respondent had been retained by the appellant to represent it in the primary suit, and therefore the Party-Party Bill of Costs must have been led with the authority of the appellant. On the second issue, the Taxing Ocer held that a Party-Party Bill of Costs and an Advocate-Client Bill of Costs are independent from one another. Therefore, she could not blindly rely on the taxed Party-Party costs while taxing the Advocate- Client Bill of Costs. 10. With respect to the value of the subject matter, the Taxing Ocer took note of the compensation, which was in the nature of special damages, claimed by the original plaintis; the averment by the original plaintis that they would tender evidence to prove the said damages; the taxed Party-Party costs; and the fact that the primary suit had been struck out before it could proceed to trial. In addition, she observed that the original plaintis had not given particulars of the parcels which were allegedly compulsorily acquired, and that there was no valuation report on the said parcels. Consequently, relying on the Court of Appeal’s decision in Moronge & Company Advocates v Kenya Airports Authority, Civil Appeal No 262 of 2012; [2014] eKLR (Moronge Case) she held that the value of the subject matter in the primary suit could not be ascertained. https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/44/eng@2024-08-02 9 11. In the circumstances, the Taxing Ocer held that she was clothed with discretion by virtue of Rule 16 of the Advocates Remuneration Order to determine reasonable compensation for the work done by the respondent. In that regard, she took into account the fact that the respondent had informed the appellant that the original plaintis would not be able to meet the taxed Party-Party costs; the fact that the primary suit was struck out as being a non-starter and the oer made by the appellant to pay the respondent Kshs 2,500,000 as instruction fees. In the end, by a ruling dated October 15, 2015 the Taxing Ocer assessed the instruction fees at Kshs 5,000,000 and taxed the total Advocate-Client costs at Kshs 8,759,022.74. 12. Aggrieved by the taxed Advocates-Client costs and more particularly, with the instruction fees, the respondent led a reference under rule 11 of the Advocates Remuneration Order. The respondent sought inter alia that the instruction fees as taxed by the Taxing Ocer be set aside; an order directing that the instruction fees be taxed as drawn in the Advocate-Client Bill of Costs or as prescribed under Schedule VI Part B of the Remuneration Order, and interest on the taxed costs as stipulated by rule 7 of the Remuneration Order. Majanja, J who was seized of the reference found that it turned on a single issue namely, whether the Advocate- Client Bill of Costs is dependent or independent of the Party- Party Bill of Costs. In that regard, the learned Judge found that whereas the formula set out in Schedule VI Part B of the Advocates Remuneration Order ought to be adhered to in determining instruction fees and other items in an Advocate-Client Bill of Costs, an Advocate-Client Bill of Costs is not wholly pegged on the Party-Party costs. He held that Party-Party costs should not simply be taken globally and increased by one-half. Rather, that a Taxing Ocer must consider each item independently bearing in mind the principles of taxation. Therefore, the learned Judge found that there was nothing to warrant interfering with the Taxing Ocer’s decision on instruction fees. Additionally, the learned Judge directed that interest at the rate of 14% per annum would accrue on the taxed costs from the date the respondent’s Advocate-Client Bill of Costs was taxed until payment in full. He also granted the respondent costs of the reference, which he assessed at Kshs 20,000. b. At the Court of Appeal 13. Unrelenting, the respondent with leave of the High Court led an appeal in the Court of Appeal, Civil Appeal No 39 of 2017, challenging the High Court’s decision. Likewise, the appeal mainly revolved around the instruction fees. In particular, the respondent contended that the High Court had erred by rstly, failing to nd that the Taxing Ocer was wrong for not taking into account the Party-Party certicate of costs in determining the costs due to the respondent. Secondly, for holding that interest on the taxed Advocate-Client costs accrued from the date the bill was taxed as opposed to the date that the fee note was presented to the appellant for payment. 14. By a majority judgment (Ouko (P), (as he then was) & Murgor, JJA) dated May 19, 2021 with Gatembu, JA dissenting, the Court of Appeal allowed the respondent’s appeal on the issue of the instruction fees. Murgor, J.A found that the crux of the appeal was whether the instruction fees determined in the taxed Party-Party costs ought to have been applied to the Advocate-Client Bill of Costs, or whether the Taxing Ocer was entitled to exercise her discretion to determine the instruction fees afresh in a matter that concerned the same suit. In determining that issue, she found that Schedule VI of the Remuneration Order is clear that in assessing instruction fees in a Party-Party Bill of Costs under Part A thereof, the starting point is to ascertain the value of the subject matter of the suit from either the pleadings, the judgment or the settlement by the parties, and then apply the amount of fees prescribed thereunder. The learned judge of appeal went on to hold that thereafter, the Taxing Ocer is at liberty to exercise his/her discretion by either increasing or reducing the said instruction fees if he/ she deems it as necessary to arrive at a just decision. https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/44/eng@2024-08-02 10 15. On the other hand, Murgor, JA held that Part B of Schedule VI also makes it patently clear that Advocate-Client costs is computed by increasing the prescribed Party-Party costs in Part A, or the fees as ordered by a court or agreed upon by the parties by 0ne-half. Moreover, she found that under Part B, unlike Part A, there is no provision for any further exercise of discretion on the part of the Taxing Ocer to either increase or reduce the advocate’s fees once the one-half formula is applied to the instruction fees ascertained in Part A. Therefore, she held that Part B which relates to Advocate- Client costs cannot be ascertained independently unless and until Part A relating to Party-Party costs is determined, since the instruction fees in Part B is an arithmetical computation derived from the instruction fees determined in the Party-Party costs in Part A. 16. Accordingly, the learned Judge of Appeal found that the value of the subject matter, in the matter at hand, had been determined when the Party-Party costs were taxed and a certicate of costs issued on July 15, 2010. As a result, she held that as long as the said certicate of costs had not been set aside, then the instruction fees determined therein was binding upon the parties and the Taxing Ocer by virtue of section 51(2) of the Advocates Act (cap 16, Laws of Kenya). To that end, she found that it was not within the Taxing Ocer’s mandate to reopen the issue of instruction fees, and that she was simply required to apply the instruction fees determined in the taxed Party-Party costs. She emphasised that there was no requirement for the Taxing Ocer to exercise her discretion in determining the instruction fees at that point, and if Parliament had intended otherwise, it would have expressly provided the same in the Advocates Remuneration Order. 17. Murgor, J.A distinguished the Moronge Case on the ground that when the Advocate-Client Bill of Costs therein was placed before a Taxing Ocer, the Party- Party costs had not been determined, unlike in the matter at hand. Therefore, the Taxing Ocer in the Moronge Case was required to look into and determine the instruction fees. Pertaining to the matter at hand, the learned Judge of Appeal held that save for the instruction fees determined in the taxed Party-Party costs, the Taxing Ocer was only entitled to exercise her discretion under rule 16 of the Advocates Remuneration in scrutinizing the other items in the Advocate-Client Bill of Costs to determine costs that are due to the advocate. Thereafter, she held that the sum of the instruction fees and other costs increased by one-half would result in the taxed Advocate-Client costs. Lastly, she found that the respondent had not included the issue of interest in its Advocate-Bill of Costs, which in eect negated the application of rule 7 of the Advocates Remuneration Order. Therefore, she found that there was no basis for the interest granted by the High Court. 18. On his part, Ouko (P), as he then was, entirely agreed with Murgor, J.A. He added that in determining instruction fees in an Advocate-Client Bill of Costs, the value of the subject matter must be ascertained a priori. Further, that where the value of the subject matter of a suit is known or can be determined from the pleadings, judgment or settlement, the Taxing Ocer has no discretion in assessing instruction fees. In the matter at hand, the then learned Judge of Appeal found that since the primary suit had been terminated before it was heard on merit, the value of the subject matter could only be ascertained from the pleadings. Besides, he stated that by dint of the provisions of order 4 rule 2 of the Civil Procedure Rules, the original plaintis were not expected to plead more than they did. Therefore, he held that the amount expressly claimed and specically pleaded in the Amended Plaint of Kshs.13,932,000,000 was the value of the subject matter. 19. As to the relationship between Part A and B of Schedule VI, he found that the words employed by the Legislature therein are clear. In that, Part B is a formula for computing Advocate-Client costs, which requires applying the said formula on the costs ascertained in Part A. In other words, he held that the outcome of Part B inevitably depends on what has been ascertained under Part A. Consequently, he also found that it was not open for the Taxing Ocer to ignore/review the instruction fees determined https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/44/eng@2024-08-02 11 in the taxed Party-Party costs without an application for setting aside the same. On the issue of interest, the then learned Judge of Appeal declined to award any interest on the taxed Advocate-Client costs as it would escalate the costs to disproportionate levels. 20. In his dissent, Gatembu, JA concurred with the ndings of the Taxing Ocer and the High Court on the issue of instruction fees. He begun by observing that neither were the particulars of the parcels of land, their sizes or their value pleaded, nor were the alleged developments thereon identied by the original plaintis. It followed, that the compensation sought, which was in the nature of special damages, had not been established. Therefore, he found that the gure of Kshs.13,932,000,000 urged to be the value of the subject matter is a ‘gure from nowhere’. In that regard, he also found that there was a striking resemblance between the matter at hand and the Moronge Case. He went on to state that the mere mention, without more, of a gure in a pleading cannot, per se, determine the value of the subject matter for purposes of taxation. Likewise, he expressed that the formula provided in Part B of Schedule VI cannot fetter the judicial discretion of a Taxing Ocer. Especially, where the Party- Party Bill of Costs is taxed by a dierent Taxing Ocer, and the reasons for arriving at the costs are not apparent. In his view, section 51(2) of the Advocates Act simply stipulates that a certicate of costs is nal in respect of the costs covered therein. 21. In the end, the court issued the following orders: i. The ruling and orders of the High Court on instruction fees and interest are set aside; ii. The respondent’s instruction fees are taxed in terms of Schedule VI Part A and B of the Advocates Remuneration Order in the sum of Kshs.196,044,750.50; and iii. As the appeal has succeeded in part, each party to bear their own costs in this Court and in the lower courts. 22. Perturbed by the Court of Appeal’s judgment, the appellant led an application, Civil Applic No E001 of 2021, anchored on article 163(4)(b) of the Constitution before the same court seeking leave to lodge an appeal in this Court. The appellant argued that the intended appeal raises substantial questions of law, and by a ruling dated March 17, 2023 the Court of Appeal (Kiage, M’Inoti & Mumbi Ngugi, JJA) granted the leave sought. c. At the Supreme Court 23. Pursuant to the leave granted, the appellant led this appeal seeking this court’s pronouncement on the following issues: i. What is the proper interpretation of the provisions of Schedule VI Part A and B of the Advocates Remuneration Order? In particular, whether the phrase “fees prescribed in A above increased by one- half” eectively takes away the Taxing Ocer’s judicial discretion in the taxation of an Advocate-Client Bill of Costs. ii. What is the proper judicial interpretation of the term “subject value” in instances where the subject matter of a dispute although pleaded is ctitious and unsubstantiated hence unascertainable from the pleadings? iii. Whether a certicate of taxation of Party-Party costs is binding per se on the Taxing Ocer in the taxation of the Advocate-Client Bill of Costs, and whether such certicate completely fetters discretion in assessing instruction fees in Advocate-Client costs. iv. Whether costs awarded to an advocate should be allowed to be so punitive (in this case being an increment of instruction fees by the majority of the Court of Appeal from Kshs 5,000,000 to https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/44/eng@2024-08-02 12 Kshs 196,044.750,50) with the eect of impeding access to justice as guaranteed under article 48 of the Constitution. 24. Ultimately, the appellant sought the following reliefs: - a. An order setting aside the impugned judgment of the Court of Appeal delivered on May 19, 2021 and substituting it with an order dismissing the appeal. b. A permanent injunction restraining the enforcement of the impugned decision of the Court of Appeal delivered on May 19, 2021 and the certicate of costs issued on June 21, 2021. c. Costs of this appeal and the proceedings in the Court of Appeal. 25. It is important to point out that on the premise of a notice of motion dated April 19, 2023 at the instance of the appellant, this court by a ruling dated June 16, 2023 issued orders of stay of execution of the impugned judgment as well as the enforcement proceedings thereof before the High Court, HCCC No Misc Cause No 95 of 2011, pending the determination of this appeal. 26. In opposing the appeal, the respondent led a replying adavit sworn by one of its partners, David Otieno, on July 31, 2023 mainly challenging the propriety of the appeal on the ground that it does not involve issues of general public importance. In response, the appellant led a further adavit sworn by its Acting Company Secretary, Margaret Munene, on 4th August, 2023. C. Parties Submissions i. Appellant’s Submissions 27. The appellant relied on its written submissions dated September 22, 2023 and led on September 25, 2023 as well as the further adavit mentioned herein above. It was posited that the contention that the appeal does not raise any issues of general public importance by the respondent is moot by dint of this court’s ruling dated June 16, 2023 in Otieno Ragot & Co. Advocates vs. Kenya Airports Authority, SC Applic No E015 of 2023; [2023] KESC 55 (KLR). In that, the appellant argued, the said ruling upheld the certication by the Court of Appeal that the appeal raises issues of general public importance bringing that issue to rest and there is no justication to re-open it again in this main appeal. 28. The appellant took issue with the interpretation of Part B of Schedule VI of the Advocates Remuneration Order by the majority judgment. In its view, the said interpretation is restrictive and led the majority of the Court of Appeal to erroneously hold that instruction fees under Part B are exclusively an arithmetical computation derived from the instruction fees determined under Part A. Therefore, the appellant contended that it was a misdirection on the part of the majority to nd that Part B of Schedule VI places a mandatory obligation upon a Taxing Ocer to merely increase the instruction fees determined in Party-Party costs by one-half in assessing instruction fees in Advocate- Client costs. 29. Equally, the appellant argued that the majority judgment was wrong in nding that the phrase “fees prescribed in A above increased by one-half” in Part B of Schedule VI takes away the ’s discretion when it comes to an Advocate-Client Bill of Costs. To begin with, it was asserted that the said interpretation is contrary to Paragraph 16 of the Advocates Remuneration Order, which grants Taxing Ocers discretion to determine the actual costs due. Further, the appellant claimed that the said phrase does not fetter the judicial discretion of a to consider every item in an Advocate-Client Bill of Costs. Especially, the appellant emphasized, where the Party-Party Bill of Costs was taxed by a dierent Taxing Ocer other than the Taxing Ocer seized with the Advocate-Client Bill of Costs, and the reasons for such taxation are not apparent. Moreover, the appellant submitted that the respondent had led the https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/44/eng@2024-08-02 13 Party-Party Bill of Costs without its instructions; the Party-Party Bill of Costs was taxed as drawn; and the Taxing Ocer therein did not interrogate the value of the subject matter. 30. Likewise, it was maintained by counsel for the appellant that a certicate of taxation of Party-Party costs does not take away the Taxing Ocer’s discretion when it comes to consideration of an Advocate- Client Bill of Costs. This is because, in the appellant’s view, there is a distinction between Party- Party costs and Advocate-Client costs. In that, the former aims to compensate successful litigants for unnecessary litigation expenses incurred while the latter aims to remunerate advocates for work done based on their client’s instructions. Towards that end, the case of Coetzee v Taxing Master, South Gauteng High Court and Another (2010/14197) [2012] ZAGPJHC 175 was cited. 31. According to the appellant, the Court of Appeal disregarded the principle that where the value of the subject matter cannot be ascertained, a Taxing Ocer is required to exercise his/her discretion based on relevant considerations to determine the instruction fees. Therefore, the appellant claimed that the majority Judges of the Court of Appeal erred in holding that the instruction fees in the Advocate- Client costs should be based on the Party-Party costs which had been taxed on the premise of a ctitious and unsubstantiated gure pleaded in the amended [laint. What was more, it was contended that the majority decision went against the doctrine of judicial precedent by failing to adhere to the court’s own decision in the Moronge Case which was similar to the matter in issue. 32. It was postulated that the impugned decision portends the impediment of the right of access to justice not only to the parties herein but also to the general public, and in particular, litigants of humble means. More so, claimed the appellant, where advocates move to tax Party-Party Bill of Costs based on ctitious gures with the sole aim of anchoring their claim for costs from their clients on the taxed Party- Party costs. Further, the appellant asserted that the impugned decision will allow advocates to charge unsubstantiated exorbitant fees which are not commensurate to the work done. To buttress that proposition, this court’s decisions in Westmont Holdings SDN BHD v Central Bank of Kenya & 2 others, SC Petition No. 16 (E023) of 2021; [2023] KESC 11(KLR) and Evans Odhiambo Kidero & 4 others v Ferdinand Ndungu Waititu & 4 others, SC Petition No 18 of 2014; [2014] eKLR were cited. 33. Last but not least, we could not help but note that the appellant’s counsel in his oral submissions delved into the issue of interest on taxed costs, which issue was neither certied as a matter of general public importance nor canvassed in the written submissions. He alleged that the Court of Appeal had not conclusively dealt with this issue and invited this court to determine when interest on taxed costs should commence running. ii. Respondent’s Submissions 34. The respondent relied on its written submissions dated September 22, 2023 and led on September 26, 2023, further submissions dated December 22, 2023 and led on 10th January, 2024 as well as the replying adavit stated herein above. The respondent submitted that an advocate has ostensible instructions to act for his/her client at all stages of the suit, and it would be outrageous to suggest that such an advocate would be required to obtain the express authorisation of the client to le a Party- Party Bill of Costs where costs have been awarded to the client. Rather, it was urged that the converse would be a serious dereliction of duty on the part of an advocate to fail to le a Party-Party Bill of Costs in such circumstances. Nonetheless, the respondent submitted that this issue had been determined during the taxation of the Advocate-Client Bill of Costs wherein the Taxing Ocer found that the respondent had instructions to le the Party-Party Bill of Costs. Further, that since the appellant had not challenged the said nding through a reference it could not turn around and allege otherwise. https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/44/eng@2024-08-02 14 35. On the competency of the appeal, the respondent stated that the appellant had invited this court to pronounce itself on whether costs should be allowed to be so punitive as to impede the right of access to justice under article 48 of the Constitution. Consequently, the respondent claimed that the eect of the said prayer placed the appeal within the realm of article 163(4)(a) of the Constitution, that is, an appeal involving the interpretation of the Constitution. Even so, it was urged that there was absolutely no litigation in the superior courts below touching on or around article 48 or any other provision of the Constitution. It was also submitted that the issues of general public importance set out in this appeal were never raised or the subject of litigation in any of the superior courts below. Further, the respondent believed that the said issues do not transcend the circumstances of the dispute between the parties. 36. In other words, the respondent claimed that the appellant was simply seeking this Court to rectify what it thought was an error by the Court of Appeal with regard to the interpretation of Schedule VI of the Advocates Remuneration Order, which is well settled through numerous precedents. Towards that end, this Court’s decision in Malcom Bell v Hon Daniel Torotich Arap Moi & Another, SC Applic No 1 of 2013; [2013] eKLR was cited. In the circumstances, it was submitted that this court’s jurisdiction had not been properly invoked, and the court was asked not to entertain the appeal. the respondent maintained that despite this court’s ruling on review of the Court of Appeal’s certication, this court should be open to reconsider the issue of jurisdiction at any stage of the proceedings where doubt continues to linger. 37. It was submitted that the Moronge Case was distinguishable to the matter at hand, as rightly appreciated by Murgor, JA According to the respondent, the majority decision correctly found that once instruction fees and other fees are determined in the Party-Party costs, a Taxing Ocer who is tasked with determining the Advocate-Client costs in the same matter is strictly required to increase the same by one-half. Furthermore, that the only exceptions to such computation is where for instance an advocate did not render all the services due to a change of advocates, and where there is proof of part payment of such fees. 38. Turning to the value of the subject matter, the respondent reiterated the nding by the majority of the Court of Appeal that the same was discernible from the pleadings. Besides, the respondent argued that the primary suit was led before the 2010 amendment of the Civil Procedure Rules which introduced the requirement of ling witness statements and documents with the pleadings. Be that as it may, it was posited that the question of whether or not the claim was ctitious could only have been proved at the trial but the primary suit was struck out before going to trial. In that case, the respondent stated that there was no basis for the appellant to claim that the amount sought in damages was ctitious yet no declaration to that eect had been made by any court. Consequently, it was the respondent’s submission that this court could not at this stage make a nding that the gure was ctitious. The respondent also asserted that even assuming the matter went to trial and the amount claimed was found to be ctitious, the advocate’s fees would still be based on the amount claimed. 39. In the respondent’s view, the value of the subject matter had already been determined when the Party- Party costs were taxed. Therefore, the appellant submitted that if the appellant deemed the said value was ctitious it should have sought to set aside the taxed Party-Party costs. Furthermore, it was urged that the interpretation advanced by the appellant, that is, that there can be two dierent values of a subject matter with one applying to Party-Party costs while the other Advocate-Client costs, will lead to absurdity. The respondent went on to contend that the right of an advocate to recover his/her fees is not pegged on the ability of the client’s adversary to pay the taxed Party-Party costs. The respondent added that as long as the taxed Party-Party costs in this matter remains in force, any decision reversing the majority decision of the Court of Appeal would amount to undercutting which is contrary to section 36 of the Advocates Act. This is because, urged the respondent, the costs awarded by the majority https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/44/eng@2024-08-02 15 of the Court of Appeal is the minimum prescribed fees under Part B of Schedule VI of the Advocates Remuneration Order. 40. It was the respondent’s contention that the only grouse the appellant had with the Advocate-Client Bill of Costs is that it was allegedly excessive. In the respondent’s view, the same was evident from the fact that the appellant did not raise any objection to the taxed Party-Party costs, and only cried foul when the said costs were applied to the Advocate-Client costs. Nevertheless, the respondent argued that should this court allow this appeal, it would be tantamount to opening the taxed Party-Party costs and re-taxing the same in the absence of the original plaintis in the primary suit contrary to the right to fair trial under article 50 of the Constitution. 41. On the issue of interest, the respondent asserted that the High Court decision on that issue was never challenged on appeal. Nonetheless, it claimed that the Court of Appeal delved into the issue despite the same not being properly before it. The respondent explained that it did not challenge the Court of Appeal’s nding on this issue simply because it did not deem that such an issue fell within the parameters of this court’s jurisdiction. Nevertheless, the respondent stated that it had left it to this court to determine the issue. In the end, the respondent asked this court to dismiss the appeal with costs. D. Analysis 42. Having considered the pleadings, the impugned judgment, and the parties’ respective submissions, it is apposite to rst address preliminary issues concerning this court’s jurisdiction on whether the appeal raises a matter of general public importance, and the award of interest which was set aside by the Court of Appeal. 43. The respondent made heavy weather of this court’s jurisdiction or lack thereof, for that matter, to entertain the appeal on two aspects. First, we understood the respondent to contend that the appeal does not raise issues of general public importance. Rather, that it revolves around the interpretation and application of the Constitution, which falls within our appellate jurisdiction under article 163(4) (a) of the Constitution. Second, that in any event, neither the issues of interpretation and application of the Constitution nor the delineated issues of general public importance arose and/or were determined in the superior courts below. 44. It is common ground that the appeal is anchored on our appellate jurisdiction under article 163(4) (b) of the Constitution. To put it dierently, the appeal is before us following the certication by the Court of Appeal that it raises issues of general public importance that warrant our consideration. It is instructive to note that the respondent sought review of the said certication before this court vide SC Applic No E015 of 2023. Equally, it is not lost to us that the respondent raised more or less similar grounds in support of its motion for review. 45. This court considered the said motion, the arguments advanced thereto and declined to review the certication by the Court of Appeal. By a ruling dated June 16, 2023, this court found the appeal does indeed raise issues of general public importance. Consequently, the respondent cannot at this stage be heard to claim that the appeal does not raise issues of general public importance. See this court’s decision in Muriithi (Suing as the Legal Representative of the Estate of Mwangi Stephen Muriithi) v Janmohamed SC, (Suing as the Executrix of the Estate of Hon. Daniel Toroitich Arap Moi) & another, SC Petition No 41 of 2018; [2023] KESC 61 (KLR). 46. The other issue relates to the question of interest on taxed costs. It is clear, right from the appellant’s motion for certication at the Court of Appeal to the respondent’s motion for review of the certication before this court, that the issue of when interest on taxed costs accrues was never raised or delineated as a matter of general public importance. The parameters of this court’s jurisdiction https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/44/eng@2024-08-02 16 with respect to an appeal under article 163(4)(b) are well settled. As this court appreciated in the aforementioned Muriithi Case, a litigant cannot expand such an appeal or introduce new issues beyond the parameters pursuant to which it was certied or admitted. On that basis, we decline the appellant’s invitation to pronounce ourselves on the said issue. 47. Turning to the crux of the appeal we will deal with the issues that were certied as being of general public importance; rstly, the interpretation of the provisions of Schedule VI of the Advocates Remuneration Order; secondly, how instruction fees of an advocate in an Advocate-Client Bill of Costs should be assessed/taxed where the Party-Party costs relating to the same matter has been assessed, and certicate of costs issued; thirdly, whether a Taxing Ocer has room to exercise judicial discretion in the assessment of costs depending on the circumstances of each case; and lastly what orders should issue. i. Interpretation of Schedule VI of the Advocates Remuneration Order 48. We are cognisant that the purpose of interpretation of statutes or documents, in this case Schedule VI of the Advocates Remuneration Order, is to discern the intention of the framers thereof. In doing so, such intention can be derived from the words used therein, as appreciated in Law Society of Kenya vs. Attorney General & another, SC Petition No. 4 of 2019, [2019] KESC 16 (KLR). Further, regard has to be given to the context thereof as the Supreme Court of India in the often-cited case of Reserve Bank of India v Peerless General Finance and Investment Co Ltd and others (1987) 1 SCC 424 expressed – “ Interpretation must depend on the text and the context. They are the basis of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important… A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, rst as a whole and then section by section, clause by clause, phrase by phrase and word by word…” 49. The Advocates Remuneration Order is anchored on section 44 of the Advocates Act which reads in part as follows: “ 44. Chief Justice may make orders prescribing remuneration (1) The Council of the Society (Law Society of Kenya) may make recommendation to the Chief Justice on all matters relating to the remuneration of advocates, and the Chief Justice, having considered the same, may by order, prescribe and regulate in such manner as he thinks t the remuneration of advocates in respect of all professional business, whether contentious or non- contentious…” [Emphasis added] 50. Therefore, in light of the above provision, the Advocates Remuneration Order, just as its name suggests, relates to the remuneration of advocates. As evinced by rule 2 thereof, it relates to assessment of costs incurred in a contentious matter which can be reimbursed to a successful party/litigant by the other party. More specically, it prescribes and regulates the remuneration of advocates in respect of professional business undertaken, and the recompense of costs/expenses incurred by a successful party in a suit. The overall objective is to prevent exploitation of parties to a suit/transaction with regard to remuneration of advocates and compensation of costs or expenses incurred by a successful party as well as maintain the standards of the legal profession. Dierently put, it is to ensure that fees/costs paid to an advocate and a successful party are reasonable. Of importance, is that what amounts to reasonable costs can only be determined on a case-by-case basis. In that regard, the Court of Appeal in the locus classicus case of Premchand Raichand Ltd v Quarry Services of East Africa Ltd (No 3) [1972] EA 162 https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/44/eng@2024-08-02 17 captured the rationale best by formulating the following guiding principles in assessing costs under the Advocates Remuneration Order: a. That costs should not be allowed to rise to a level as to conne access to justice as to the wealthy; b. That a successful litigant ought to be fairly reimbursed for the cost he has had to incur; c. That the general level of remuneration of advocates must be such as to attract recruits to the profession; and d. That so far as practicable there should be consistency in the award made…” 51. Equally, section 36 of the Advocates Act and rule 3 of the Advocates Remuneration Order proscribe an advocate from charging or accepting, otherwise than in part payment, any fee or other consideration in respect of professional business which is less than the remuneration prescribed in the Remuneration Order. It sets out standards to regulate the profession from being undermined by what is known as undercutting. To ensure the objective of the aforementioned regulation is met, a Taxing Ocer, who may be the Registrar or Deputy Registrar of the High Court, is tasked with the role of assessing/taxing costs or fees under the Advocates Remuneration Order. See rule 10 of the Advocates Remuneration Order. 52. By dint of rule 50 of the Advocates Remuneration Order, Schedule VI relates to the assessment/taxation of costs in proceedings before the High Court. Schedule VI of the Advocates Remuneration Order is divided into two parts, that is, Part A which deals with Party-Party costs, and Part B with Advocate- Client costs. Of concern to this appeal, as we stated in the preceding paragraphs of this judgment, is the assessment/taxation of instruction fees of an advocate retained to act for a party in the High Court. Therefore, in interpreting Schedule VI we shall address the following sub-issues: a. How should instruction fees under Schedule VIA of the Advocates Remuneration Order be assessed and/or taxed? b. How should instruction fees under Schedule VIB of the Advocates Remuneration Order be assessed and/or taxed? a. Assessment/Taxation of instructions fees under Schedule VIA of the Advocates Remuneration Order 53. Schedule VIA provides for Party-Party costs, that is, the manner in which costs awarded to a successful party as against another party therein should be assessed/computed/taxed. The essence of such costs is to ensure a successful litigant/party receives a fair reimbursement/recompense for the costs/expenses he/she has had to incur on account of a suit. See Outa v Odoyo & 3 Others, SC Petition No 6 of 2014; [2023] KESC 75 (KLR). 54. With regard to Schedule VIA, Paragraph 1 thereof commences with the assessment of instruction fees based on the value of the subject matter, the said paragraph provides in part as follows: “ 1. Instruction fees Subject as hereinafter provided, the fees for instructions shall be as follows— … The fees for instructions in suits shall be as follows, unless the Taxing Ocer in his discretion shall increase or (unless otherwise provided) reduce it: https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/44/eng@2024-08-02 18 a. To sue in any proceedings (whether commenced by plaint, petition, originating summons or notice of motion) in which no defense or other denial of liability is led, where the value of the subject matter can be determined from the pleading, judgment or settlement between the parties and – … b. To sue in any proceedings described in paragraph a. where a defense or other denial of liability is led; or to have an issue determined arising out of inter-pleader or other proceedings before or after suit; or to present or oppose an appeal where the value of the subject matter can be determined from the pleadings, judgment or settlement between the parties and – …” [Emphasis added] 55. It is common ground that the subject matter of the suit in issue should be identied rst, and then the value thereof determined. How is the value of the subject matter to be determined? Paragraph 1 of Schedule VIA is clear on this issue, and in point of fact stipulates that, “… where the value of the subject matter can be determined from the pleading, judgment or settlement of the parties”. This means that the value of the subject matter can be determined from the pleadings or judgment or settlement of the parties. In that regard, the Court of Appeal in the case of Joreth Ltd v Kigano & Associates [2002] 1 EA 92 expressed that- “ We would at this stage point out that the value of the subject matter of a suit for the purposes of taxation of a Bill of costs ought to be determined from the pleadings, judgment or settlement (if such be the case) ...” 56. Equally, the Court of Appeal in considering the issue of how the value of a subject matter can be determined in Peter Muthoka & another v Ochieng & 3 others, Civil Appeal No 328 of 2017; [2019] eKLR, stated as follows: “ It seems to us quite plain that the basis for determining subject matter value for purposes of instruction fees is wholly dependent on the stage at which the fees are being taxed. Where it happens before judgment, it is the pleadings that form the basis for determining subject value. Once judgment has been entered, and for what seems to us to be an obvious reason, recourse will not be had to the pleadings since the judgment does determine conclusively the value of the subject matter as a claim, no matter how pleaded, gets its true value as adjudged by the court. Where, however, a suit is settled, then, from a literal and practical reading of the provision, the subject matter value must be sought by reference, in the rst instance, to the terms of the settlement. Just as one would not start with the pleadings in the face of a judgment, it is indubitable that one cannot start with the pleadings where there is a settlement.” We concur and approve of the foregoing ndings by the Court of Appeal on the factors to take into consideration when determining the value of the subject matter. 57. Whilst the determination of the value of subject matter from a judgment and settlement of the parties is quite straight forward, the determination from pleadings is not. The determination of the value of the subject matter, may be dicult, for instance, where the pleadings/suit is struck out at a preliminary https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/44/eng@2024-08-02 19 stage, such as in this case, and the value can only be determined/ascertained upon the conclusion of a trial. In considering this pertinent issue, we make reference to D Njogu and Co Advocates v Kenya National Capital Authority, HC Misc Applic No 21 of 2003; [2005] eKLR, wherein the advocate therein acted for the respondent (who was the plainti) in a suit whose claim was for Kshs 82,706,408.60, together with interest at 30% per annum from October 18, 2000. On whether the value of the subject matter could be determined from the pleadings, Ochieng, J, as he then was, held that- “ So, whilst I accept that the advocate may have been instructed to sue for not only the principal sum, but also for interest thereon, at a specic rate, that fact alone cannot mean that the claim would be successful. In other words, the court could dismiss the whole claim, or grant part of the principal sum. Alternatively, the court could grant judgement for the whole principal sum, but without interest, or even with interest at rates other than those claimed. Eectively, therefore the value of the subject matter of the suit would remain indeterminate until the court passed its verdict on the case.” [Emphasis added] 58. The facts of the instant appeal were not so dissimilar with the above case as the value of the subject matter was disputed by the appellant and the issue was not determinable from the pleadings which were struck out. It is evident that the original plaintis did not provide any particulars or the value of the parcels that were allegedly compulsorily acquired by the appellant. This information in our view was necessary as a guide to the Taxing Ocer in the assessment of reasonable costs. The original plaintis simply pleaded or claimed a sum of Kshs.13,932,000,000 as special damages and indicated that the particulars thereto would be availed during the hearing. Therefore, the value of the subject matter could only be determined upon the conclusion of the trial which never happened. 59. We are of a considered opinion that a claim in a suit which is struck out at the preliminary stage does not ipso facto render that claim or amount pleaded therein without more the value of the subject matter. The position still remains that the amount therein has not been ascertained or determined, and as such, it cannot be applied as the value of a subject matter in a disputed taxation. The application of such a claim or amount as the value of the subject matter would go against the rationale that the fees/costs paid to an advocate and a successful party should be reasonable. Consequently, we are not persuaded by the respondent’s contention that even where the amount claimed in a pleading which is struck out by a court, as in the instant appeal, the said amount would still act as the value of the subject matter when it comes to taxation of instruction fees. 60. Be that as it may, where the value of the subject matter can be determined, the Taxing Ocer is required to set out the basic fees prescribed under Schedule VI Part A. Similarly, where the Taxing Ocer assesses instruction fees based on the nature of a matter as stipulated in Paragraph 1, for instance like, bankruptcy proceedings or matrimonial causes she/he is required to set out the basic fees prescribed thereunder. It is after setting out the basic fees that the Taxing Ocer can exercise his/her discretion to increase or (unless otherwise provided, like in matrimonial causes) reduce the said basic fees. See First American Bank of Kenya v Shah and Others [2002] 1 EA 64. In exercising such unfettered discretion, the Taxing Ocer is required to do so judiciously and not whimsically. Ojwang, J, (as he then was) aptly set out the manner in which such discretion should be exercised by a Taxing Ocer in Republic v Ministry of Agriculture & 2 others ex parte Muchiri W’njuguna & 6 others, HC Misc 621 of 2000; [2006] eKLR, in the following terms: “Since costs are the ultimate expression of essential liabilities attendant on the litigation event, they cannot be served out without either a specic statement of the authorising clause in the law, or a particularised justication of the mode of exercise of any discretion https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/44/eng@2024-08-02 20 provided for… The complex elements in the proceedings which guide the exercise of the Taxing Ocer’s discretion, must be specied cogently and with conviction. … It was necessary to specify clearly and candidly how she had exercised her discretion. Discretion, as an aspect of judicial decision-making, is to be guided by principles, the elements of which are clearly stated and which are logical and conscientiously conceived. It is not enough to set out by attributing to oneself discretion originating from legal provision, and thereafter merely cite wonted rubrics under which that discretion may be exercised, as if these by themselves could permit of assignment of mystical gures of taxed costs.” 61. In the event that value of the subject matter of a suit can not be determined from either the pleadings, judgment or settlement by the parties, and the nature of the said suit is not provided for in Paragraph 1 of Schedule VIA, proviso (i) thereunder empowers a Taxing Ofcer to exercise his/her discretion in assessing instruction fees for such a suit. The proviso in question reads as follows: “ ... the Taxing Ocer may take into consideration other fees and allowances due to the advocate (if any) in respect of the work to which any such allowance applies, the nature and importance of the cause or matter, the amount involved, the interest of the parties, the general conduct of the proceedings, a direction by the trial judge, and all other relevant circumstances; ...” See Joreth Ltd v Kigano & Associates (supra). 62. The Court of Appeal in the Peter Muthoka Case found and rightly so, when the aforementioned discretion comes into play as follows: “It is only where the value of the subject matter is neither discernible nor determinable from the pleadings, the judgment or the settlement, as the case may be, that the Taxing Ocer is permitted to use his discretion to assess instructions fees in accordance with what he considers just bearing in mind the various elements contained in the provision we are addressing. He does have discretion as to what he considers just but that discretion kicks in only after he has engaged with the proper basis as expressly and mandatorily provided: either the pleadings, the judgment or the