Linus Maemba Mlula Chuwa vs St. Bernard Hospital Company Limited (Civil Reference No. 20 of 2023) [2025] TZCA 1085 (13 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL REFERENCE NO. 20 OF 2023 DR. LINUS MAEMBA MLULA CHUWA ........................................ APPLICANT VERSUS ST. BERNARD HOSPITAL COMANY LIMITED..........................RESPONDENT (Application for Reference from the Ruling of the Taxing Officer of the Court of Appeal of Tanzania at Dar es Salaam) (Hon. Mtarania, Taxing Officer fDR-CA^ dated the 6th day of September, 2023 in Taxation Cause No. 70 of 2022 RULING 6th & 13th October, 2025 MURUKE. J.A.: Dr. Linus Maemba Mlula Chuwa, the applicant herein, being aggrieved by the decision of the taxing officer, in Taxation Cause No. 70 of 2022 (Mtarania, DR) in which the amount of TZS. 2,090,000, was taxed as a total bill of costs, he has filed present reference. Same has been made by a latter pursuant to the provisions of rule 125 (1), (2) and (3) of the Tanzania Court of Appeal Rules (the Rules). In the present application, applicant moves the Court to vary the decision of the Taxing on the following grounds; i

i. That the taxing officer in arriving at her decision on the issue of delayed service of written submission by the applicant completely misconceived in holding that the respondent did not prove miscarriage of justice contrary to the scheduled order made for filling the same on a false ground that the respondent has no permanent address o f service. ii. That the ruling o f the bill of costs as taxed by the taxing officer is in all circumstance manifestly excessive given the material facts adduced at the hearings as well as contrary to the scales and rates provided for by the law in the circumstances. iii. There is no proofrecord that the applicant/decree holder reply to respondent's written submission was filed and served to the respondent as ordered as required by the law before the decision was delivered and therefore denying the respondent his right to be heard. From the pleadings, background of the matter may be stated as follows; the applicant herein was the applicant in Civil Application No. 185/01 of 2019, whereby on 19th July, 2022 when the matter was

scheduled for hearing before the Court, the applicant prayed to withdraw the application, consequently, was granted with order of costs. The respondent then filed a taxation cause No. 70 of 2022, the decision dissatisfied the applicant hence, this reference. When the matter came for hearing, the applicant did not enter appearance where as Mr. Frank Kilian, learned advocate appeared for the respondent. However, it is noteworthy that both counsel had earlier lodged their written submission pursuant to Rule 106 (1) of the Rules, thus, both deemed to be heard. On the first ground, the applicant in his, submitted that pursuant to the order of the taxing officer, the application for bill of costs was heard by way of written submission. The respondent deliberately delayed for seven (7) days to serve the applicant with the written submission. He insisted that the date of filing written submission is also the date of serving the same to the other party. Despite of the respondent's failure to serve the applicant on the day he filled the submissions, he never sought for extension of time to serve the applicant as it was ordered. The applicant stressed that written submission is a substitute of oral hearing thus, both parties must be afforded a fair and reasonable time to respond to each allegation raised. The respondent's failure to serve the applicant as

ordered, denied him with an adequate time to respond to the submissions. Counsel referred the Court to the case of Ex-D.856 CpI Senga C/O Idd Nyemba &7 Others vs Republic, [2020] TLR 260. As regard to the second ground, the applicant is faulting the bill of costs taxed by the taxing officer on the ground that the same is menifestively excessive, and submitted that Kariwa and Co. Advocates was engaged in taxation cause No.70 of 2022 and not Civil Application No. 185/01/2019, hence only entitled to item 2. On item 16 of taxation costs in the Third Schedule, counsel submitted that, the same should have been complied with by annexing the bill of Kilindu & Co. Advocates as disbursement. It was further submitted by the applicant that, the taxing officer erred by holding that the bill of costs to be taxed emanates from appeal while the same was based on application. Thus, Taxing Officer ought to have relied in paragraph 9(1) of the third schedule to the Rules and not Paragraph 9 (2), (3) and (4) of the third schedule to the Rules. The applicant insisted that, taxing officer acted on a wrong principle in awarding costs.

More so, the applicant complained that under Item 1 and 2 of the bill of costs, the advocate for the respondent indicated that on 6th Apri'1,2019 the respondent counsel was engaged to prosecute Civil Application No. 185/01 of 2019 and item 2 is instructions fee to act for respondent. It was wrong as he cannot act for both parties, and insisted that it was the applicant who filed Civil Application No. 185/01 of 2019 hence the respondent's counsel is only entitled to TZS. 20,000 only taking into account that the application was withdrawn by filing a notice of withdraw, insisted the applicant. Responding to the applicant submission, respondent's counsel Ms glory Venance in her submission on the first ground submitted that both parties complied with the scheduled order. The applicant was served with submission eight (8) days before the expiry of his time to file reply submission and he filed his reply as scheduled. She added that the applicant has no permanent address as he had withdrawn his instructions to his former advocate. Therefore, he was never deprived of an opportunity to reply new issues as he alleged. Counsel distinguished the case of Ex-D.856 CpI Senga C/O Idd Nyemba &7 Others vs Republic (supra) cited by the applicant on the reason that in that case it was held that where there is no fair procedural hearing, then, the

proceedings are vitiated. While in the taxation cause there was no any procedural irregularities as both parties were fully heard and the applicant filed his submission opposing the costs. Concerning the second ground, Counsel for the respondent submitted that, the applicant's argument that the taxed bill was excessive is misplaced. Counsel, firmly submitted in her written submission that the taxing officer exercised her discretion in accordance to the law and facts governed by paragraph 9 (2) and (3) of the Third schedule to the rules. That, the amount claimed was TZS. 12,000,000 the taxing officer taking into account that the matter ended on preliminary stage and the parties did not argue though counsel prepared for hearing, she only taxed TZS. 2,000,000 out of the claimed amount. On the allegation that Kariwa Advocates did not prosecute civil application No. 185/01 of 2019, Counsel for the respondent submitted that, through the notice of change of advocate filed on 9thJune, 2022 the respondent notified the court that he will be represented by Kariwa Advocates, consequently on 19th July, 2022 date fixed for hearing Advocate Cornelius Kariwa entered appearance for the respondent. Hence no need to comply with paragraph 16 of the third schedule to the rules

by annexing the bill of costs for Kilindu & Co. Advocates since the application was prosecuted by Kariwa & Co. Advocates. Counsel for the respondent submitted further that there is nowhere in the ruling the taxing officer held that the taxation originates from an appeal as evidenced at page one of the ruling that, the costs were granted to the respondent following the applicant's prayer to withdraw civil application No. 185/01 of 2019. She insisted that the amount claimed in item 1 and 2 of the bill of costs was for Civil Application No 185/01/2019. Since Karuwa & Co. Advocates appeared for the respondent then there is no any prejudice to the applicant following the grant of the costs. The respondent counsel conclusively submitted that the applicant is acting frivolously and vexatiously, thus, prayed the application be dismissed with costs. From the parties' submissions it is worthy noting that the essence of this application is Civil Application no. 185/01 of 2019 lodged by the applicant before the Court. It is crystal clear that on 19th July, 2022 the date set for hearing of the application, parties did not argue the same as the applicant prayed to withdraw the application, consequently the Court granted the prayer with costs. As submitted by the applicant, in the impugned ruling the taxing officer at page 10 when considering the

instruction fees, she was governed by paragraph 9 (2), (3) and (4) of the third schedule to the Rules. Since this is an application, the proper provision guiding taxation on applications is paragraph 9 (1) and (4) of the Third Schedule to the Rules. The Rule provides that; (1) "The fee to be allowed for instructions to make, support or oppose any application shall be such as the taxing officer shall consider reasonable but shall not be less than 100/= (2) N/A (3) N/A (4) Other costs shall, subject to the provision o fparagraphs 10,11 and 12 be awarded in accordance with the scale set out in this schedule or, in respect of any matter for which no provision is made in those scales, in accordance with the scale applicable in the High Court. Therefore, the taxing officer misdirected herself in making reference to paragraph 9 (2), (3) and (4) of the third schedule to the Rules, First and third grounds the applicant's complaint is that he was denied a fair and reasonable time to respond to each allegation raised by the respondent. As it can be gathered from submissions and records, it

appears that the respondent having filed his written submission did not serve the same to the applicant on the same date, service was done seven (7) days later on the reason that the applicant had no permanent address for service. Though the applicant faulted this fact, but he did not prove that, he availed the respondent with the address and he was deliberately not served on time. I am of the same view with the taxing officer that, there is no any miscarriage of justice on the part of the applicant, since the respondent filed the submission within time, the applicant was served despite of such a delay which was justified by the respondent's counsel, he managed to reply the same. Thus, there is no any procedural irregularity to prejudice the applicant as alleged by the applicant. The applicant is faulting the bill of costs taxed by the taxing officer on the ground that the same is excessive. In his argument, the applicant insisted that Kariwa & Co. Advocates could not benefit from item 1 of the bill of costs, instruction fee since they did not prosecute Civil Application No. 185/01 of 2019, which is the essence of the bill of costs. He insisted that there was advocate Kilindu & Co. Advocates who was firstly engaged by the respondent, hence compliance of paragraph 16 of the third schedule to the Rules was mandatory. This argument was strongly

countered by the respondent's counsel as she stated that on 09th June, 2022 they filed notice of change of address having been instructed to represent the respondent in that application. Having been served with the notice of hearing Mr. Cornelius Kariwa, learned advocate from Kariwa & Co. Advocates appeared for hearing as scheduled. Rule 16 of the third Schedule to the Rules, requires where there is change of advocate, a bill of costs of the first advocate may be annexed. In the circumstance of the matter at hand, it appears that, Kariwa & Co. Advocates is the one who prosecuted the application and not Kilindu & Co. Advocate, he is this entitled to the costs awarded. Having so stated, the issue to be determined is whether the taxing officer exercised her discretion judiciously in awarding the costs. The settled position is that, the award of instruction fees is peculiarly within the discretion of a taxing officer. The Court will only interfere with his decision, once it is proved that the taxing officer exercised his discretion injudiciously or has acted upon a wrong principle or applied wrong consideration. This has been articulated in several decisions of the Court to include the cases of, Tanzania Rent A Car Limited vs Peter Kimuhu (Civil Reference 9 of 2020) [2021] TZCA 103, The Attorney

General vs. Amos Shavu, Taxation Reference No. 2 of 2000, The East African Development Bank vs. Blue Line Enterprises, Civil Reference No. 12 of 2006 (both unreported). In the case of Premchand Raichand Ltd and Another vs. Quarry Services of East 8 Africa Ltd and Others (No.3) [1972] 1 E.A. 162 by the erstwhile Court of Appeal for Eastern Africa and Court of Appeal for East Africa, propounded four guiding principles which have to be considered when determining the quantum of an instruction fee. These are; - "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 o f 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 consistency in the awards made, both to do justice between one person and another and so that a person contemplating litigation can be advised by his advocates very li

approximately, for the kind o f case contemplated, is likely to be his potential liability for costs." In the case of The Attorney General vs Amos Shavu (Taxation Reference No. 2 of 2000) [2000] TZCA 86, the Court stressed that a need of a large sum as instruction fee will only be justified by the nature of the case, its complexity, the time taken by the hearing or arguments, the amount of research involved etc, referring the case of Smith vs Eulle (1875) 19 Eq.473. The respondent claimed TZS. 12,000,000 as instruction fees. The taxing officer, in her ruling at page 12 found the amount to be excessive and could not meet justice. She also took into account that though the respondent prepared for hearing but they did not argue as the application was withdrawn. She thus taxed 2,000,000/= as instruction fee and tax off the remaining. In total the bill of costs taxed was TZS. 2,090,000. As said earlier, the Court will not interfere with the taxing officer's decision, unless it is proved that the taxing officer exercised his discretion injudiciously or has acted upon a wrong principle or applied wrong consideration. From my observation, I find no reason to 12

interfere with the taxing officer decision, since the amount awarded is reasonable and justified. For the foregoing, this reference is dismissed. Each party to bear own costs. DATED at DAR ES SALAAM this 13th day of October, 2025. Z. G. MURUKE JUSTICE OF APPEAL The Ruling delivered this 13th day of October, 2025 in the presence of Mr. Frank Killian, learned counsel for the Respondent and in the absence of the Applicant and Mr. Nelson Novati, Court Clerk; is hereby of the original. D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL 13