Hiacitha Paul Kayuka Njau and Another vs Joseph Paul Kyauka Njau and Another (Bill of cost No. 1 of 2017) [2023] TZCA 18027 (27 September 2023)

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI BILL OF COST NO. 1 OF 2017 (Arising out of Civil Application No.7105/2017) HIACITHA PAUL KYAUKA N]AU ................................... ... 1ST APPLICANT EMMANUEL PAUL KYAUKA NJAU ....................................... APPLICANT VERSUS JOSEPH PAUL l(Y'AU l(A NJAU .........................................1 ST RESPONDENT CATHERINE PAUL KYAUKA NJAU ............. 2ND RESPONDENT (Application for taxation arising from the decision of the Court of Appeal of Tanzania at Arusha) (Mwangesi, 1A.) dated the 23" day of May, 2017 in Civil Application No. 7/05 of 2016 RULING 21 & 271h September, 2023 LYIMO, DR-CA. - TAXING OFFICER The Applicants herein filed this bill of costs which emanates from the decision in Civil Application No. 7/05/2017 which was an application for extension of time to file application for leave to appeal to the Court of Appeal out of time to challenge the decision of High Court of Tanzania at Moshi. In this application the applicants are claiming to be reimbursed a total of Tshs 12,110,0001= as expenses incurred in defending Civil 1

Application No. 7/05/2017 and the anticipated costs to file and argue this bill of costs At the hearing of the application, Ms. Jackline Kulwa learned counsel enter appearance for the applicants, whereas, the respondents had the service of Ms. Stella Simkoko learned counsel. Arguing in support of the bill of costs Ms. Kulwa submitted that, this bill of costs consists of four categories which are instruction fees, attendance fee, disbursement fees and fee for filling bill of costs. Starting with item No.1, the instruction fee to defend the application the word appeal written instead of the word civil application she admitted the error and stated that it was a slip of the pen. She went on to say that the error cannot differentiate what was before the court as the decision raised the bill of costs was attached to the application at hand. She prayed the court to see it as an error not to deny the applicants right of defending the case to the amount claimed which is Tshs. 10,000,0001= In defending the amount claimed, Ms. Kulwa submitted that the amount claimed is in accordance with the workload to prosecute the case, taking into account the travel expenses from Dar es salaam to Arusha. She relied on paragraph 9 (1) of the Third Schedule to the Court 2

I 11 of Appeal Rules to convince the Court to exercise its discretion to grant the claimed amount. Ms. Kulwa further submitted that the second category which involves attendance fees to the effect that item No.2 and item No.8 be granted as per the scale of costs which is Tshs. 10,000/= per each item as indicated in item 14 of the scale of costs concerning attending to the registry. She added that item No.3 is supposed to be charged as per the scale of costs as per item No 18 which provide Tshs 30,0001= for minimum. In respect of item 4 and item 12 the she prayed the same be charged in accordance with item 19 of the scale of costs to the Court of, Appeal Rules to wit Tshs. 10,0001= again in item 10 which is the costs: I for attending hearing of the application Ms. Kulwa prayed the Court to charge as per the scale of costs as per item 15 whereas the amount provided is 10,000/= minimum amount and for every subsequent 15 minutes it increases to Tshs. 15,000/=. Ms. Kulwa went on to state that, item No.11 are costs for attending the Court for hearing. In elaborating that, she stated that, they have attended two times first it was on 22rd August 2019 whereby both parties appeared before the Deputy Registrar in the Court session 3

which was held at Arusha. She prayed the said item to be charged as per item No.15 of the scale of costs which provide the amount charged to be Tshs 15,0001=. Moreover, in item No.5 and item No.6 which are costs for disbursement, Ms. Kulwa prayed the same to be granted as prayed. Further to that she prayed item No.9 which is costs for instruction fee to purse this bill of costs to be settled to the tune of Tshs 500,000/=. she submitted that the amount claimed is reasonable and she refers the Court to paragraph No.9 (4) of the Third Schedule to the Court of Appeal Rules and prayed the court to apply the Advocate and Renumeration Order 2015 which is applicable to the High Court in taking into account the amount prayed. She stated that the Scale applicable in the High Court on part of the instruction fees provides the Maximum amount to be one million and the minimum amount five hundred thousand. She prayed the bill of costs be taxed as presented. In respond to the submission Ms. Simkoko argued that, item No.1 should be taxed off with the reason that the mention item is written costs to defend the Appeal while there was no Appeal which awarded costs. She added that paragraph 9 (1), (2) of the Third Schedule to the Court of Appeal Rules differentiate the costs of the application and costs 4

of appeal. She further stated that paragraph 5 of the Third Schedule to the Court of Appeal Rules does not allow the alteration to the bill of costs once lodged except with consent or permission of the taxing officer whereas no consent was given nor permission was soughtand granted to that effect. To bolster her argument, Ms. Simkoko submitted that paragraph 11 (1) of the Third Schedule provide that no costs shall be allowed whether there is negligence or mistake, in the alternative if the Court would decide not to consider her objection then the amount prayed is excessive because the application was not complex as it was an application filed in accordance with section 5(1) C of the Appellate Jurisdiction Act, Chapter 141, R.E. 2019 and it was filed under Rule 45 A (1) b of the Court of Appeal Rules. She insisted that it is known that once a party is aggrieved with the decision under section 5 (1) C of the Court of Appeal Rules is supposed to file an application for leave. She argued that the amount prayed is in relation to appeal while there was no appeal at all. In respect of item No. 2 and item No.8 Ms. Simkoko has no objection the same to be taxed according to the scale of costs as the amount charged is Tshs. 10,000/= as proposed by the counsel for the 5

applicants. She also concurred with items No. 3, 4, 12, and 10 to be taxed as per the scale of costs provided at the ThIrd schedule to the Court of Appeal Rules. With regards to item 11 Ms. Simkoko challenged the submission of Ms. Kuiwa and argued it to be taxed off with the reason that the counsel for the applicants predicted it while prepared the bill of costs. In item No. 5 and item No.6 which involves costs for disbursement Ms. Simkoko disputed the items to the effect that paragraph 4 (1) of the Third Schedule to the Court of Appeal Rules requires disbursement to be shown separately at the foot of the bill of costs. She went on to submit that no receipts were tendered in Court which is contrary to paragraph 4 (2) of the Third Schedule to the Court of Appeal Rules as a result all items for disbursement needed to be taxed off. Ms. Simkoko invited the Court in item No.9 to allow only Tshs 200,000/= as instruction fee to defend this bill of costs for the reason that the matter at issue is between the siblings and what contended among them was the issue of administration of the estate of the late Paul Kyauka Njau, the deceased. In rejoinder, Ms. Kuiwa argued that in item No.1 the counsel for the respondents misleads the facts. The application which was before 11

the Court was an application for extension of time which was made under Rule 10 and rule 48 (1), (2) of the Court of Appeal Rules as reflected clearly to the judgement of the Court. She added that based on the nature of the application it was a complicated matter which involve legal principle. She prayed the amount claimed to be granted as presented and on the issue raised by the counsel for the respondents with regards to item No. 1 that should be disallowed as it was written costs for defending appeal instead of civil application Ms. Kulwa reiterated to her submission chief. Furthermore, Ms. Kulwa submitted that paragraph 9 (1), (2) of the Third Schedule to the Court of Appeal Rules is applicable in item No.1 because it gives the quantum costs in both appeals and applications. Again, in respect of paragraph 11 (1) of the 3rd Schedule. she stated that the provision does not apply in the circumstance as it deals with expenses of witnesses and the applicants has not press costs for witnesses. Corresponding, to the issue of disbursement Ms. Kulwa submitted that the counsel for the respondents prayed the amount charged not to be allowed but the Court record prevail even in the attachment of the bill of costs clearly indicates that party have filed written submission 7

before the Court. She also stated that in practice once lodge application in court a party must pay. That they have complied and prayed the amount of Tshs 30,000/= be reimbursed. In respect of item No.9 the instruction fee to defend this bill of costs, that the amount be waived for the reason that the parties are siblings holds no water as the applicants are being dragged to the Court by the respondents challenging the post of being administrator, and that being a case the costs are incurred from the estates of the late Paul Kyauka Njau. That affecting the interest of other heirs because the source of legal fund came from the estate of the late Paul Kyauka Njau. She stated that in disallowing this application for the bill of costs is injustice to other heirs. She prayed the same to be allowed and granted as presented. From the rival submissions of the parties, it is common that the bill of costs is guided by the provisions of the Third Schedule to the Court of Appeal Rules. In view of the paragraph 11 (1) of the Third Schedule which guiding on how charges should be reflected to reach into justice. Item 11(1) provides that; "11(1) on taxation, the taxing officer shall allow such costs, charges and disbursements as shall appear to him to have been reasonably incurred for the attainment of justice but no costs shall be allowed

which appear to the taxing officer to have been incurred through overpayment, extravagance, overcaution, negligence or by payment of special charges or expenses to witnesses or other persons or by other unusual expenses." In view of the above provision, this bill of costs is supposed to be charged according to the guided provision in which the court will charge the amount claimed as per the scale of justice. Furthermore, in the case of East Africa Development Bank vs. Blueline Enterprises Ltd, Civil reference No. 12 of 2006, Court of Appeal observed at page 8 as follows; "Our mission is to administer timely and affordable justice to all In order to realI?'e this as well as to enable all to access the court, of whatever grade justice ought to be cheap. ..... After a/I, costs are not meant to be a penalty, but to indemniñ,' a successful party against expenses reasonably incurred in vindicating one's r,'hts" Having taken much consideration of the position of the above- mentioned provision, with regards to the non-objection items in which each part agreed the same to be taxed as per the scale of justice, on my part I have no reason to decline the amount claimed. Consequently,

item No. 2, 3, 4, 8 1 10 and 12 are hereby taxed to the tune of Tshs. 80,000/=. In item 11 cost for attending hearing this bill of costs, the counsel for the applicants defended the amount of Tshs. 10,000/= as per item 15 of the scale of costs to the Third Schedule of the Court of Appeal Rules, on the ground that they have attended the Court two times at first it was on 22nd August, 2019 when the Court session was held in Arusha and again, they attended the Court on this 21st September, 2023. The counsel for the respondents objected the said amount to be granted as specified in item 11 and suggested item 11 to taxed off, with the reason that the counsel for the applicants predicted the claims while prepared the bill of costs. In the reality I agree that the counsel for the respondents that had the claim not fixed in the application form then the Court could be in a position to allow the prayed amount. There is no doubt that parties have attended in Court two times because the records of the Court speak by itself. Further to that it is the facts that, indicating the claims in the bill of costs at early stage it was a mistake. Hence item No. 11 is hereby taxed off. In item No. 5 and 6 stand for costs for disbursement. In these items the counsel for the respondents disputed the items to the effect 10

that according to paragraph 4 (1) of the Third Schedule to the Court of Appeal Rules requires disbursement to be shown separately at the foot of the bill of costs. She added that no receipts were tendered in Court which is contrary to paragraph 4 (2) of the Third Schedule to the Court of Appeal Rules as a result all items for disbursement prayed to be taxed off. I agree with the submission of the learned counsel for the respondents that the disbursement costs are to be shown at the foot of the bill of costs of which item No.5 is clearly indicated at the foot of the bill of costs except item No. 6 which is indicated in the anticipated costs of the bill of costs as the first item. However, both items are being claimed as disbursement but I have gone through the record of the Court I have not come across any receipts presented for disbursement which is contrary to paragraph 4 (1) of the Third Schedule to the Court of Appeal Rules. Hence both item 5 and item 6 are taxed off. Apart from that item No. 1 and item No 12 are costs for instruction fee in defending Civil Application No. 7/05/2017 and this bill of costs No.1 of 2017 respectively. In item No.1 consists of Tshs. 10,000,0001= which is being claimed as instruction fees in defending Civil Application No. 7/05/2017 whereas item No. 12 the amount claimed is Tshs 500,000/= for 11

defending this bill of costs. Ms. Kulwa argued that the amount claimed as instruction fees should be taken into consideration that the counsel used to travel from Dar es salaam to Arusha to defend the case. However, Ms. Simkoko objected item No.1 and item No.12 which consist costs for instruction fees with the reason that in item No.1 the amount claimed refers to appeal which does not exist as it indicated fees in defending civil appeal. She went on to state that the error to that effect cannot be altered without the leave of the Court as per paragraph 5 of the Third Schedule to the Court of Appeal Rules. She added that if the Court decided to allow item No.1, then the amount prayed is huge and excessive because the application was not complex. In item 12 Ms. Simkoko proposed the amount claimed to be reduced to the tune of 200,000/= as the matter involve siblings and the issue between them was on the issue of the administration of the estate of the late Paul Kyauka Njau. In view of the arguments of both parties I do agree with the counsel for the applicants that the word appeal appeared in the bill of costs instead of the word application was a slip of the pen. Having said so then the amount claimed is a huge amount despite the fact that the counsel stated that she used to travel from Dar es salaam to Arusha to defend the application. In this it is known that Court of Appeal cases are 12

being schedule in form of sessions, though not stated but a single session cannot cause the overpayment. The counsel for the applicants failed to justify the reasonability of the huge amount claimed in defending a Civil Application No.7/05/2017 into details in which the application sought was for extension of time to file application for leave to appeal to the Court of Appeal. in the event, the Court is satisfied that the application lacks merit and dismissed it with costs. Therefore, I find the amount claimed as instruction fees is excessive and unreasonable. In the case of Premchard Raichand Ltd and Another v. Quarry service of East Africa Ltd and other (No. 3) [1972] 1 E.A 162 by erstwhile Court of Appeal for Eastern Africa and Court of Appeal for East Africa. The Court laid down four guiding principles which have to be considered when determining quantum of an instruction fee. It was stated as follows; "First, that costs shall not be allowed to rise to such a level as to confine access to the courts to only the wealthy; second, that the successful litigant ought to be fairly reimbursed for the costs he reasonably incurred; thirdly, the general level of the remuneration of advocates must be such as to attract worthy recruits to an honourable profession; and fourthly, that there must, so far as practicable, be 13

consistency in the awards made, both to do] justice between one person and another and so that a person contemplating litiiation can be advised by his advocates very approximately, for the kind of case contemplated, is like to be his potential liability for costs' Moreover, In the case of Tanzania Rent A Car Limited v. Peter Kihumu, Civil Reference No. 9 of 2020 the Court of Appeal held as follows, "I wish to start by stating that, it is trite law that instruction fees is supposed to compensate adequately an advocate for the work done in preparation and conduct of a case and not to enrich him. In smith v. Buller (1875) 19 E9.473, dted in Rahim Hash/rn v Allbhai (1938) 1 T.L.R (R) 676, the court observed that, "Costs should not be excessive or oppressive but only such as are necessary for the liti'ation/' In light of the foregoing, and in exercise discretion given under paragraph 9 (1) of the Third Schedule to the Court of Appeal Rules, I find that the reasonable amount for instruction fees in item No.1 is Tshs. 7,000,0001= only and in item No. 12 the amount is reasonable hence I hereby taxed the same as presented to the tune of Tshs. 500,000/= I 13 14

don't I agree with the invitation made by the counsel for the respondents that both parties are siblings so as to allow the amount proposed to the tune of Tshs. 200,000/=. Had the parties known that they were siblings would have not dragged each other to Court of law and that is why even the Court granted costs. In the final analysis, I hereby tax this bill of costs to the tune of Tshs. 7,580,000/= only. it is so ordered. DATED at MOSHI this 27th day of September, 2023. D. R. LYIMO TAXING OFFICER The Ruling delivered this 27th day of September, 2023 in the presence of Mr. Peter Njau Kyauka, (Brother) who represent both Applicants and Respondents is hereby certified as a true copy of the on gi . TAXING OFFICER O V Jv j 15