Yoel Andrea and Massay Kissay vs Minael Safari (Civil Reference No. 000021714 of 2025) [2025] TZHC 8712 (19 December 2025)

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT MANYARA CIVIL REFERENCE NO. 000021714 OF 2025 YOEL ANDREA AND MASSAY KISSAY ................................ COMPLAINANT / APPELLANT I APPLICANT / PLAINTIFF VERSUS MINAEL SAFARI............................. RESPONDENT I DEFENDANT RULING KAMUZORA, J 25th November & 19th December, 2025 This is a civil reference brought pursuant to the provisions of Order 7(1) and (2) of the Advocates' Remuneration Order, Government Notice No. 263 of 2015 (hereinafter referred to as the Order). The Applicants filed Taxation Cause No. 6647 of 2025 before this Honourable Court, claiming total costs amounting to TZS 5,590,000/=, together with costs for attending the taxation of the bill of costs. The Taxing Officer allowed total costs of only TZS 2,530,000/= for all items, inclusive of TZS 50,000/= as costs for attending the taxation. Being dissatisfied with the decision of the Taxing Officer, the Applicants instituted this reference, contending that the bill of costs was taxed below the scale prescribed by law. The Applicants accordingly pray for the following

orders:

1. That this Honourable Court be pleased to find that the decision of the Taxing Officer dated the 12th day of August, 2025 in Taxation Cause No. 6447 of 2025 was erroneous, having taxed the bill of costs below the scale prescribed by law.
2. That the Taxing Officer erred in taxing instruction fees at the rate of TZS 1,000,000/= for each Applicant, which amount is below the prescribed scale and contrary to the law.
3. That the Taxing Officer erred in applying the Eleventh Schedule, paragraph 1(i)(d) of the Advocates’ Remuneration Order of 2015 in awarding instruction fees.
4. That the Taxing Officer failed to exercise his discretion judiciously by taxing TZS 50,000/= only as costs for attending, filing, and prosecuting Taxation Cause No. 6647 of 2025. The Applicants therefore pray that this Honourable Court be pleased to reassess the costs in accordance with the law governing taxation of bills of costs and to award the costs of this reference. As regards legal representation, the Applicants engaged the services of Mr. Gwakisa Sambo, Advocate, while the Respondent appeared in person and was unrepresented. The parties elected to prosecute the application by way of written submissions. In his written submissions, learned counsel for the Applicants adopted the Chamber Summons and the supporting affidavit and submitted that the Taxing

I Officer erred in taxing both the bill of costs and the costs for attending the taxation below the scale prescribed by law. He contended that the counter affidavit opposing the bill of costs did not disclose sufficient grounds to justify the Taxing Officer’s failure to properly exercise his discretion. Counsel further faulted the Taxing Officer for failing to exercise judicial discretion judiciously by taxing instruction fees at the minimum and manifestly inadequate sum of TZS 1,000,000/= per Applicant, which is below the statutory scale and contrary to the law. He argued that the Taxing Officer failed to take into account the entirety of the work undertaken in prosecuting the appeal, particularly the research conducted and written submissions prepared in opposition to the appeal. In his view, the discretion of the Taxing Officer was not judiciously exercised, thereby occasioning an erroneous decision. He added that the value of the disputed land, as reflected in the record, was TZS 30,000,000/= and that, accordingly, the Taxing Officer ought to have applied Item 4 of the Ninth Schedule of the Order when taxing the instruction fees. He referred the decision in the cases of HAIDAR BIN MOHAMED ELAMANDRY & OTHERS VS. KHADIJA BINTI ALI (1956) 23 EACA at page 313; GEORGE MBUGUZI & ANOTHER V. A. S. MASIKINI (1980) T.L.R at page 55 and that of UJAGAR SINGH (1968) HCD 173 in which the court held that, instruction fee is for the work done in preparing a case before trial. Learned counsel for the Applicants further submitted that the costs awarded for attending the taxation of the bill of costs were grossly undervalued Page. 3

V at TZS 50,000/=, contrary to the spirit and intent of the Eleventh Schedule, paragraph 1(i)(m) of the Order, which prescribes TZS 500,000/= for unopposed application and TZS 1,000,000/= for opposed application. He maintained that, since the bill of costs was opposed, the applicable scale was TZS 1,000,000/= and not TZS 50,000/=. Counsel added that, in the written submissions in support of the bill of costs, it had been expressly stated that the Applicants’ Advocate travelled by private means from Arusha to Babati in the Manyara Region in order to attend the taxation. He contended that, had the Taxing Officer taken into account transport expenses, together with the costs incurred in the preparation, filing, and attendance of the biil of costs, it would have been apparent that the award of TZS 50,000/= was manifestly below the prescribed scale. He therefore prayed that this Honourable Court be pleased to evaluate the entire bill of costs and to determine a proper amount that would meet the ends of justice. In reply, the Respondent commenced by challenging the competence of the reference, contending that it was fundamentally defective and incompetent for failure to comply with Order 7(3) and (4) of the Advocates’ Remuneration Order, 2015. He submitted that the said provisions mandatorily require an applicant to file and serve copies of the reference upon all parties entitled to appear at the taxation within seven days after endorsement by the Registry Officer. He argued that, notwithstanding the mandatory nature of the provision, the Respondent was served on 16 September 2025 with documents which had Page. 4

been endorsed by the Registry Officer on 27 August 2025. On that basis, he prayed that the reference application be dismissed for non-compliance with the law. On the merits of the application, the Respondent submitted that the Applicants’ Advocate was obliged to specify the particular Order or Schedule relied upon in claiming instruction fees in the sum of TZS 5,000,000/=. He argued that the failure to cite the relevant provision was in contravention of Order 13 of the Order, which prohibits an advocate from agreeing to or accepting remuneration in excess of that prescribed by the law. The Respondent further submitted that, according to the record, the value of the land In dispute, the subject matter of the proceedings was TZS 18,600,000/=, being the price at which the First Applicant sold the suit land. He contended that the Applicants’ Advocate misled this Honourable Court by asserting an unfounded value of TZS 30,000,000/=. In her view, the claim for instruction fees in the sum of TZS 5,000,000/= for both Applicants was excessive when measured against the value of the subject matter. The Respondent also disputed several items in the bill of costs, including Items 3, 4, 5, 6, 7, 10 and 11, which related to transport expenses allegedly incurred by the Applicants, as well as Items 8, 9, 11 and 13 which related to transport and attendance costs of an advocate. He submitted that, in assessing costs, the Court is entitled, inter alia, to consider the conduct of the parties, the value of the subject matter and the circumstances that gave rise to the institution of the proceedings. He emphasised that costs are awarded not Page. 5

V as a punishment of the unsuccessful party but as recompense to the successful party for expenses reasonably incurred. He expressed the view that the Applicants had deliberately claimed excessive costs with the intention of punishing the Respondent, asserting that both the instruction fees and attendance fees claimed were unduly high. He pointed out that counsel for the Applicants claimed transport costs in the sum of TZS 150,000/= while simultaneously claiming TZS 50,000/= as attendance fees under Items 8 and 12 and Items 9 and 13, without providing any evidential basis to justify those amounts. In conclusion, the Respondent reiterated that the reference was misconceived, incompetent, and devoid of legal merit, and accordingly prayed that it be struck out. In rejoinder, learned counsel for the Applicants submitted that the Respondent had improperly raised a preliminary objection within his written submissions, contrary to established procedure. He argued that, apart from being contrary to the law, the purported preliminary objection did not meet the threshold set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors, [1969] EA 696, as it was founded on matters of mixed fact and law, particularly the issue of service, which would require evidentiary proof. He contended that this defect disqualified the objection from being entertained as a proper preliminary objection. He further submitted that the essence of the law is to ensure that parties are afforded the fundamental right to be heard. He argued that, in the present Page. 6

application, the Respondent was fully accorded that right, in that he was duly served with the application through the Village Executive Officer, appeared before the Court, and filed a counter-affidavit. Consequently, the Respondent’s objection was misconceived and ought to be disregarded. With regard to instruction fees, the Applicants’ counsel reiterated the submissions in chief and maintained that the value of the property in dispute was TZS 30,000,000/= as pleaded, and not TZS 18,600,000/= as contended by the Respondent. He submitted that the Taxing Officer was therefore obliged to apply Item 4 of the Ninth Schedule of the Order in assessing the instruction fees. Counsel argued that, had the Taxing Officer taken this into account, he would have realised that taxing instruction fees at TZS 1,000,000/= per Applicant was below the prescribed scale and contrary to the law. He further submitted that, even if the Court were to accept that the estimated value of the subject matter was TZS 18,600,000/=, the application of Item 4 of the Ninth Schedule of the Order would still not justify instruction fees of only TZS 1,000,000/= as taxed. He maintained that the claim of TZS 2,500,000/= per Applicant was neither excessive nor punitive to the Respondent, but fair and commensurate with the work undertaken, thereby meeting the ends of justice. With respect to Items 3, 4, 5, 6, 8, 10, 11 and 12, the Applicants” counsel submitted that the amounts as taxed were fair and just, and that the Respondent’s submissions to the contrary ought to be disregarded, as he neither filed a cross-reference nor challenged those items in his counter Page. 7

affidavit. As regards Items 9 and 13, the Applicants’ counsel prayed that this Honourable Court be pleased to allow the costs as claimed, on the ground that they constituted attendance fees lawfully incurred by the Applicants and paid to their Advocate in accordance with the law. They contended that the disallowance of those items amounted to an apparent error of law. Starting with the Respondent’s objection on the competence of the reference, I agree with learned counsel for the Applicants that the said argument was raised in the form of a preliminary objection. However, it does not meet the well-established threshold for a proper preliminary objection, as it raises matters requiring evidential proof, particularly on the issue of service. In any event, the Respondent failed to demonstrate any prejudice occasioned by the alleged delay, if any. In the circumstances, I shall proceed to determine the reference on its merits. Turning to the merits of the application, I shall address grounds two and three jointly, as they both relate to the taxation of instruction fees. Learned counsel for the Applicants contended that the instruction fee of TZS 1,000,000/= taxed for each Applicant was below the prescribed scale and contrary to the law, and that the Taxing Officer erred by applying paragraph 1(i)(d) of the Eleventh Schedule of the Order. Counsel maintained that the applicable provision was Item 4 of the Ninth Schedule to the Advocates’ Remuneration Order, 2015. Page. 8

The Ninth Schedule of the Order provides for costs in contentious proceedings for a liquidated sum. Item 4 thereof prescribes a scale of fees where the value of the subject matter ranges between TZS 15,000,000/= and TZS 30,000,000/= at the rate of 12%— 15%. I am unable to agree with the submission by the Applicants’ counsel that the Taxing Officer was bound to assess instruction fees under the Ninth Schedule. The said Schedule applies specifically to contentious proceedings for a liquidated sum. A liquidated sum generally denotes a specific amount of money either agreed upon by the parties or capable of precise ascertainment without recourse to further evidence or calculation. Black's Law Dictionary defines a liquidated sum as an amount contractually stipulated as a reasonable estimate of damages payable upon breach; where liquidated damages are agreed, the stipulated sum becomes the measure of damages. In my view, for costs to be assessed under the Ninth Schedule, they must arise from contentious proceedings whose subject matter is. a liquidated monetary claim and in which costs are awarded by the Court in the exercise of its original or appellate jurisdiction. In the present matter, the bill of costs arose from an appeal to this Court originating from a claim for recovery of land measuring approximately 20 acres. That claim was dismissed by the trial tribunal, and the subsequent appeal to this Court was likewise dismissed, albeit with an order for costs. It is that order which gave rise to the bill of costs now under reference. Page. 9

The Applicants failed to demonstrate that the proceedings giving rise to the bill of costs constituted contentious proceedings for a liquidated sum. Accordingly, I find no merit in the contention that the Taxing Officer ought to have applied the Ninth Schedule in assessing instruction fees. On the contrary, I agree with the Respondent that, since the bill of costs emanated from an order for costs made in an appeal, the Taxing Officer properly applied Item 1(1) read together with Item 1(d) of the Eleventh Schedule to the Order. Sub-item (I) relates to fees for presenting or opposing an appeal, while sub-item (d) applies where proceedings are defended. Under those provisions, the Taxing Officer is required to award a reasonable fee not exceeding TZS 1,000,000/=. In the circumstances, the instruction fees taxed were lawful and justifiable. With respect to the Fourth Ground that the costs for prosecuting the bill of costs were under-taxed, I do not agree with learned counsel for the Applicants that such costs ought to have been taxed under Item 1(i)(m) of the Eleventh Schedule of the Order. Costs for attending taxation are governed by Order 55(3) of the Advocates’ Remuneration Order, which expressly provides that fees for attending taxation shall not be included in the body of the bill but shall appear at the end, with the amount left blank for completion by the Taxing Officer. It is therefore clear that the amount payable for attending taxation lies within the discretion of the Taxing Officer. By invoking Item 1(i)(m), counsel for the Applicants appeared to suggest that the costs were fixed and

predetermined. That interpretation is inconsistent with the spirit and letter of Order 55(3), which vests discretionary authority in the Taxing Officer to award such amount as he considers reasonable. In exercising that discretion under Order 55(3), the Taxing Officer awarded TZS 50,000/= as costs for attending taxation. While I accept that the amount was lawfully awarded, I agree with counsel for the Applicants that it was relatively low, particularly considering that the bill of costs was opposed and that the Applicants were represented by an Advocate who travelled from outside the region. Taking into account transport costs and the time expended in prosecuting the taxation, I am satisfied that an award of TZS 500,000/= would be reasonable in the circumstances. Turning to the First Ground, namely that the bill of costs was taxed below the prescribed scale, I have reviewed both the bill as presented and the amounts taxed. The bill comprised thirteen items, exclusive of disbursements and costs for attending taxation. Items 1 and 2 concerned instruction fees, which I have already addressed under grounds two and three. Items 3, 4, 5, 6, 7, 10 and 11 related to transport costs for the Applicants, while Items 8 and 12 related to transport costs for the Advocate. These items were allowed by the Taxing Officer as claimed. Items 9 and 13, which claimed TZS 100,000/= as attendance costs, were disallowed on the ground that they fell within instruction fees. I find no basis to fault that determination, as the Applicants failed to establish otherwise. The disbursement of TZS 20,000/= was also properly allowed. Page. 11

Accordingly, save for the costs of attending taxation, I find that the bill of costs was properly taxed. The Respondent’s contention that the transport costs awarded under Items 3, 4, 5, 6, 7, 10 and 11 were excessive and punitive is unfounded, particularly as no cross-reference was filed challenging those items. Similarly, the argument that the Applicants simultaneously claimed transport and attendance costs is without merit, since the attendance costs were in fact taxed off by the Taxing Officer. In the result, the reference is partly allowed. The costs for attending taxation are hereby varied from TZS 50,000/= to TZS 500,000/=. In all other respects, the taxation by the Taxing Officer is upheld. As the application has only partially succeeded, each party shall bear its own costs of this reference. Dated at MANYARA this 19th of December 2025 . Page. 12