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DR. JOHN EUDES RUHANGISA, TAXING OFFICER
[1] In this bill of costs filed by Professor Peter Anyang’Nyong’o and ten
others as applicants, a total of USD 5, 622,528.69 is claimed as costs
incurred by the applicants in the course of conducting the suit, namely
Reference No. 1 of 2006. The claims leveled against the Judgment debtor, the
Attorney-General of the Republic of Kenya and two others relates to the
reimbursement for actual expenses incurred by the applicants, to wit, costs
for filing the reference and the bill of costs as charges for stationary,
travel and upkeep expenses between Nairobi and Arusha where the East African
Court of Justice is headquartered. The bill of costs filed attempted to
comply with the Court order for costs that the bill of costs by the
applicant and the taxing officer should limit the taxation thereof to those
disbursements claimed.
[2] Mr. Kajwang spent quite deal of time leading the court through the
jurisprudence developed in various authorities on the principles that he
requested the Court to take into account when considering issues of taxation
of bill of costs. Among the authorities cited included the famous case of
PremchandRaichand Ltd & Another v. Quarry Services of East Africa Ltd and
Others (1972) EA 162; James Katabazi and Others v. Secretary General of East
African Community and Another (EACJ Taxation Cause NO. 5 OF 2008; First
American Bank of Kenya v. Shah and Others (2001) 1 EA 64; Simpsons Motor
Sales (London) Ltd v. Hendon Corporation (1964) 3 All ER 833; President of
the Republic of South Africa and Others v. Gauteng Lions Rugby Union (2001)
ZACC 5; (1) BCLR 1 and City of Cape Town v. Arun Property Development (PTY)
Ltd and Another (2008)ZAWCHC.
[3] The learned counsel for the applicants asked the Court to consider the
volume and magnitude of the documentary evidence, the urgency of a brief,
absence of developed jurisprudence on the subject in the region, the
importance of the case, the pleadings, authorities and everything that was
laid before the Court during hearing of the reference. He went on to refer
to the number of interlocutory applications that were generated by the
reference, the research work involved, the period of time employed in
business, the value of the subject matter and the caliber of counsels
involved as guiding principles to the Court in determining the professional
fee chargeable. In other words Mr. Kajwang was attempting to give an
impression that the above principles were reflected in his reference and
therefore in the circumstance the amount of money US$ 4,339,416.89 ascribed
into instruction fee in item 1 is reasonable.
[4] Mr. Anthony Ombwayo, Principal State Counsel representing the
Respondents conceded to the validity and basis of most of the claims by the
claimants but disputed some of the items in the claim saying that they were
either excessive or did not make any sense or that they lacked supportive
documentary evidence. Initially, specific items 86 to 105 were disputed by
the Principal State Counsel representing the Respondents on grounds of lack
of documentary evidence, whereas item 109 did not make any sense to him, and
item 116 lacked credible receipts. However, upon listening to Mr. Kajwang’s
submission and clarification on some items making reference to an Invoice
Annexture B1 and Receipt Annexture B2, Mr. Ombwayo reviewed his stand on
items 86, 88, 90, 93, 94 and 95 which contained claims for mileage expenses.
The burden of proving the authenticity of an Invoice for printing and
binding expense Annexture A1 and the corresponding Receipt Annexture A2 was
put on the Counsel for the Applicants.
[5] Mr. Ombwayo strongly disputed the professional fee charges US $
4,339.416.89 referred to in item 1 on ground that they were highly excessive
and the rules of the Court on taxation provided only USD 50 for this
particular item. However, the learned State Counsel admitted that the Taxing
Master has discretion, as demonstrated by this Court’s previous rulings on
applications for taxation of bills of costs, to award more than US$ 50
depending on the nature and complexity of the case. It was against this
background that he abandoned his argument of strict adherence to Rule 1 (f)
of the Scale of Charges and requested the Court to award US$ 5,000 on item
one, the amount he considered reasonable.
[6] Counsel for the applicants regretted that an agreement could not be
reached by the two sides on items in the bill of costs that was filed for
taxation despite the attempts made. He prayed that the Court look into and
consider the complexity of the case, greater professional and legal
responsibility undertaken, conducting research and examining numerous
complex and important documents and taking into consideration that this is a
case which was novel and land mark in the development and integration of the
East African Community in the general jurisprudence, look at the receipts
whether or not they tally with the claimed expenses. He went further to say
that he is ready to concede that the Taxing officer can tax off excesses
which shall have been in excess of what he actually used or decrease
whenever he finds that an item is manifestly excessive to that extent and it
will cause injustice or was unreasonably incurred as a result of over
caution or negligence on the part of the Counsel for the Applicants.
[7] On taxing exercise itself, that is, the actual calculation of the costs
to be awarded to the Applicants, the Counsel for the Applicants argued that,
when the principles of taxation have been followed the taxing officer has a
free hand to make an impression on the amount of costs which the Court would
think would compensate the Counsels on a party and party taxation. To back
his prayer and persuade the Court, the Counsel for the applicants made
reference to the Rules of Procedure of the East African Court of Justice,
principles of taxation thereon, and prior Court decisions where the
principles referred to were followed. Those principles of taxation he
suggested should be the basis and foundation of the amount to be allocated
by the Taxing Master. In particular the Counsel found Rule 9 of the Second
Schedule of the Rules of the East African Court of Justice to have made
considerable Jurisprudence around the subject of taxation, and also
emphasized that the urgency of the brief is an important principle that a
Taxing Officer would want to look into to assess the amount of instruction
fees. On that score Mr. Kajwang reminded the Court that given the urgency of
the brief, the matter was brought under certificate of urgency thereby
weighing heavily on the counsels. This culminated into the Court granting
interim reliefs that restrained the Kenya members to the East African
Legislative Assembly from being sworn in until the main reference was
concluded.
[8] Much as most items in the bills of costs were agreed upon by both
parties giving a sign that taxation exercise may be easy and smooth, the
taxing officer still has a very involving work to rule on the disputed items
especially item 1 that relates to professional fee which was vehemently
disputed by the Counsel for the Respondent for being excessive while
MrKajwang maintains the view that it is a reasonable charge.
[9] As Mr. Kajwang rightly observed, the reference gave birth to other nine
applications which were equally demanding and time consuming as the main
reference itself. Five of those applications were intervener applications
where by a Consent Order dated 17th January 2007, all the applicants were
allowed to participate in the proceedings as interveners. The said five
applications included East African Law Society and the Law Society of Kenya
v. Prof. Peter Anyang’Nyongó and Ten Others, Application No. 1 of 2006,
AbdirahimHaitherAbdi and 2 Others v. Prof. Peter Anyag’Nyongó and Ten others,
Application No. 3 of 2007, Reuben OnserioOyondi v. Prof. Peter Anyang’Nyongó
and Ten Others, Application No. 1 of 2007, MrsSafinaKwekweTsungu and 4
Others v Prof. Peter Anyang’Nyongó and Ten Others, Application No. 2 of 2007
and Hon Uhuru Kenyatta and 3 Others v. Prof. Peter Anyang’Nyongó and Ten
Others, Application No. 4 of 2007. Others were George Nangale v. Prof. Peter
Anyang’Nyongó and Ten Others, Application No. 2 of 2006 which was for the
correction of the Court Order dated 27/11/2006; Prof. Peter Anyang’Nyongó
and Ten Others v. Attorney General of Kenya and 3 others, Application No. 3
of 2007 for leave to institute contempt proceedings against the Republic of
Kenya, the Attorney General of Kenya and Hon. Koech, the application was on
30th May 2007 withdrawn; The Attorney General of Kenya v. Prof. Peter
Anyang’Nyongó and Ten Others, Application No. 5 of 2007 was an application
to have two Judges of the Court disqualify themselves from further hearing
of the reference. The application was on 6th June 2007 dismissed with costs
to the respondents; and The Attorney General of the Republic of Kenya v.
Prof. Peter Anyang’Nyongó and Ten Others, Application No. 6 of 2007 was an
application for expunging from the reference the entire Hansard of the
National Assembly of Kenya. The application was never pursued.
[10] It is not in dispute that the reference from which this bill of costs
originated was one of its kind in the history of the Court. It was this
particular reference that lead to the amending of the Treaty thereby
dividing the Court into two divisions. Indeed the reference and the amount
of work involved measure to the principles of taxation as very well
elaborated by Mr. Kajwang in his submission and from the authorities that he
cited. However, it is my humble view that by any standard, the amount
charged in item 1 as professional fee is on the high side and excessive. In
the same vein, I find it unreasonable and too wanting the US$ 5,000 proposed
by Mr. Ombwayo to represent a reasonable professional fee in this case.
Given the complexity of the case, the time it took and the amount of work it
involved, this court would be subscribing to mockery of justice if it taxes
the bill in item 1 at the tune of US$ 5,000 as proposed by Mr. Ombwayo. In
the strength of the foregoing this court considers USD 1,300,000 (US Dollars
One Million Three Hundred Thousands) a reasonable amount for instruction fee
chargeable, plus 16% VAT US$ 208,000. I therefore tax the professional fee
chargeable in item 1 of the Bill of Costs at the tune of US$ 1,508,000 (United
States Dollars One Million Five Hundred and Eight Thousand) only VAT
Inclusive.
[11] Item 2 of the bill of costs that represents what the applicant refers
to as getting up fees for preparing for trial, normally calculated as one
third of the instruction fee was not objected to by Mr. Ombwayo. However,
the amount quoted in that item consequently goes down since it is calculated
on the basis of the professional fee which has been taxed at US$ 1,508,000.
One third of 1,508,000 is US$ 502,666 and item 2 of the bill of costs is
therefore taxed at US$ 502,666.
[12] Items 3 to 85 are not disputed and I find them to reflect the genuine
costs reasonably incurred by the applicants and I taxi them as presented in
the bill of costs.
[13] Initially Mr. Ombwayo disputed the claims on mileage as reflected in
items 86, 88, 90, 93 and 95 but after Mr. Kajwang made clarification on them
as supported by receipts Annex C1, Mr. Ombwayo reviewed his stand and
withdrew his objection. I therefore taxi the amount claimed in items 86, 88,
90, 93, and 95 as presented in the bill of costs as genuine claims that were
reasonably incurred by the applicants. Likewise, items 87, 89, 91, 94, 96 on
accommodation and meals expenses incurred by counsels and applicants at
Ngurdoto Mountain Lodge, were not disputed by Mr. Ombwayo as they were
supported by Invoice Annex C1 and receipt Annex C2. Accordingly, the
aforementioned items are taxed as presented in the bill of costs.
[14] Items 97, 98, 107, 109, 110, 115, 116,118, 121 and 124 on photocopying
expenses were not disputed as such by Mr. Ombwayo but his concerned was on
the credibility of the receipts Annexes A1 and A2 which bore no physical
address of the company that provided the services. In other words the
learned counsel for the Respondents was questioning the genuineness and
authenticity of the receipts issued by Speed Wings Limited the company that
provided photocopy services to the applicants.
[15] With all due respects to Mr. Ombwayo the Principal State Counsel
representing the Respondents, it is not proper in law to put the burden of
proving the genuineness of the receipts to the applicants who just happened
to receive services from the company which issued receipts as proof of
payment for the services that were provided. I do not think Mr. Ombwayo was
suggesting that the applicants should have either rejected the receipts
issued to them or should have taken it upon themselves to print another
receipt book on behalf of the company showing its physical address. His
objection would weigh heavily on the applicants if he had done some
investigation for example with the Registrar of Companies and found that
such company by the name of Speed Wings Ltd did not exist.
[16] In the absence of such proof by the Respondent, I find his objection to
the receipts rather baseless. I therefore taxi the aforementioned items on
photocopying costs as presented in the bill of costs as the reasonably
incurred expenses.
[17] Whereas most of the items in the bill of costs were supported by
documentary evidence to show that they were costs incurred by the applicants,
others could not be supported by any receipts. Such claims (totaling US$
3743) are those for travelling, meals and accommodation expenses for the
clerk when he came to Arusha to file various documents with the Court. They
are shown in the bill of costs as items 92, 99 – 105. In the absence of
receipts there is no other way that this Court can satisfy itself that they
were expenses which were incurred by the applicant, and I taxi them off
accordingly.
[18] I have been satisfied that the applicants have followed the direction
given by the Court on the filing of the bill of costs. Instead of each group
of applicants bringing a separate bill of costs, only one global application
was filed bearing in mind that a single applicant would have presented the
reference as directed by the Court in its judgment at page 43.
[19] Much as the court should bear in mind the fact that the costs should
not be a hindrance of the general public to access it or portray the image
that courts are only to the wealthy, we cannot ignore the fact that the
court is charged with responsibility to do justice. To do justice includes
awarding costs to a successful party in order to indemnify him for the
expense to which he was put through, having been unjustly compelled either
to initiate or to defend the litigation. If the court does not fully
indemnify the party for all costs reasonably incurred by him or her in
relation to his or her claim or defense then it will have failed to
discharge its function. This ruling on taxation of the bill of costs took
into consideration the need for balancing these two propositions. Indeed the
taxing of costs is not a mathematical exercise but a matter of opinion based
on experience and laid down principles.
[20] It should be noted that on 16th May 2008 when the matter came for
hearing of a preliminary point of objection filed by MutulaKilonzo Advocates
against the bills of costs filed by the counsels for applicants in Taxation
Causes No 1, 2, 3, 4, of 2008, a consent order was filed in Court to the
effect that notices of change of advocates were withdrawn and consequently
all notices of preliminary objection were also withdrawn. The bills of costs
were agreed to be taxed together for all claimants within the bill filed by
MutulaKilonzo and Company Advocates. In clause 5 of the Consent Order it was
stated that the Respondent’s expenses for Court attendance KShs 200,000 be
taxed off from the claimants’ bill of costs. This was prompted because of
the respondents traveling expenses for the two occasions when the matter
came up for hearing but was adjourned. I therefore tax off KShs 200,000
equivalent of US$ 2,857 (at the exchange rate of KShs 70 per One Dollar).
When this is added on the costs in items items 105, and 99 – 105 (US$
3,743), the amount taxed off sums to US$ 6,600 (United States Dollars Six
Thousand Six Hundred) only
[21] After deducting the amount taxed off, in total this bill is taxed at
USD 2,033,164.99 (United States Dollars Two Million Thirty Three Thousand
One Hundred Sixty Four Ninety Nine Cents) only
I so tax
19th December 2008
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