Devshi Dhanji and 2 others v Kanji Naran Patel and 2 others [1978]eKLR

IN THE COURT OF APPEAL

AT NAIROBI
(Coram: Wambuzi, Law JJ A & Miller Ag JA)
CIVIL APPEAL NO 14 OF 1978)
Between
DEVSHI DHANJI ..........................................................PLAINTIFF
DHANJI RAMJI ............................................................PLAINTIFF
SHIVJI NARAN ............................................................PLAINTIFF
AND
KANJI NARAN PATEL..............................................DEFENDANT
KANJI RAMJI PATEL ..............................................DEFENDANT
KHIMJI VASTA PATEL ...........................................DEFENDANT
JUDGMENT
LAW JA The appellants were the defendants in a suit filed by the respondents as plaintiffs. I
will refer to them as “the defendants” and “the plaintiffs”, respectively. The suit was
dismissed with costs, with a certificate for two counsel. The plaintiffs appealed, but their
appeal was dismissed, see Patel v Dhanji [1975] EA 301. The nature of the suit is described
in the headnote to that report, as follows:
The [plaintiffs] were members of an institution and were
engaged in disputes with the office-bearers, the [defendants], and the majority of
members of the institution. [The plaintiffs] alleged that they were refused access to the
balance sheets and accounts of the institution for 1962 to 1972 and to the membership
lists. They sued for declarations that they were entitled to inspect the accounts and
lists. The trial judge dismissed the suit ...
The instant appeal concerns the successful defendants’ bill of costs in the High Court. They
claimed an instruction fee of Shs 50,000 plus Shs 25,000 for second counsel, or Shs 75,000 in
all. The taxing officer reduced these sums to Shs 27,000 and Shs 9,000 respectively, or Shs
36,000 in all. The plaintiffs were not satisfied. They referred the taxing officer’s ruling to the
High Court, contending that the amount allowed by him in respect of instructions fee was
grossly excessive in the light of the basic prescribed instructions fee in cases of this nature,
which is Shs 750. The reference came before Platt J. He correctly directed himself on the
relevant law, principles and practice. He held that there were defects in the taxing officer’s
ruling, in that he had over-emphasised the importance of the case, and the “great
responsibility” on the part of the defendants’ advocates to take “detailed instructions”. The
judge was of the view that the defendants were clearly not entitled to the large increase over
the basic instructions fee awarded to them by the taxing officer. What was he then to do" He

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was well aware, having directed himself in accordance with such authorities as D’Souza v
Ferrao [1960] EA 602 and Steel Construction v Uganda Sugar Factory Ltd [1970] EA 141,
that the general practice, where a fee has to be re-assessed on general principles, is to remit
the matter to the taxing officer; but that in proper cases the reviewing judge can deal with the
matter himself. This the judge proceeded to do.
He reduced the instructions fee to Shs 10,000 plus one-third, or Shs 13,333 in all. According
to the record, Mr Joshi, who appeared for the defendants in the court below, had said “I would
like this Court to finalise the taxation.” It was Mr Bhandari, for the plaintiffs, who wanted the
bill to be remitted to the taxing officer. As Platt J noted in his judgment, “The defendants ask
me to tax the bill here. The plaintiffs ask me to remit the bill to another taxing master.”
The defendants now appeal to this Court, the first ground of appeal argued by Mr Lakha, for
the defendants, being that the judge should not have interfered, as he had not found that the
taxing officer had acted on any wrong principle. I think this ground can easily be disposed of.
The judge found defects in the taxing officer’s ruling. He also found that the sum awarded by
the taxing officer was so excessive that he reduced it by nearly two-thirds, having commented
earlier in his judgment thatif
this Court should consider that the sum awarded was manifestly excessive it may be a
necessary inference that there has been an error in principle.
Clearly the judge drew the inference that there had been an error of principle in this case, in
that the taxing officer had over-emphasised the difficulties, importance and complexity of the
suit, which was basically a simple matter involving only two issues: the right of the plaintiffs
to be given copies of the accounts of the institution and to inspect the list of members. The
difficulties and complexities arose, not out of the nature of the suit, but out of the bitter
enmity existing between the parties, which led to an undue expansion of a basically simple
case, which in the event took thirteen days to try, the original issues being largely overlooked
and ignored by all concerned. As I remarked in the course of my judgment in Patel v Dhanji
[1975] EA 301, 303, “When bitter differences arise between members of a communal
household, the inevitable consequence seems to be that reason flies out of the window.” I
would not disturb the judge’s decision to interfere in this case and I would dismiss the first
ground of appeal.
The second ground of appeal relates to what action the judge should have taken, having
decided to interfere. In Mr Lakha’s submission, he should have remitted the matter to the
taxing officer, with his directions, in accordance with the general practice as laid down in a
long line of authority.
He should have declined to deal with the matter himself, although invited to do so by Mr
Joshi who then appeared for Mr Lakha’s clients in this appeal. I am inclined to agree that the
defendants are not bound by the stand taken by Mr Joshi in the court below, if he was asking
the judge to do something contrary to the general practice. But a judge has jurisdiction to tax a
bill himself. As was said by Gould Ag V-P in D’Souza’s case [1960] EA 602, “Though the
general practice is as indicated in the foregoing passages, the reviewing judge can and
sometimes does deal with the matter himself.” It is a question of discretion. Did Platt J in this
case rightly exercise his discretion when he decided to deal with the matter himself, instead of
following the general practice and remitting the matter to the taxing officer"
The judge gave the following reasons for acting as he did:
Mr Bhandari is within his rights to ask for that [ie remitting to the taxing officer] to be
done, and that is the usual practice. Mr Joshi is equally entitled to ask this Court to
finalise this matter. It then becomes a matter of convenience. In my opinion it would

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be more convenient to finalise the matter which has become protracted, even though
the objector feels that the normal practice should be followed. The reason is that the
taxing officer will have to go through afresh taking now three if not four judgments
into consideration. It will be matter of exegesis upon exegesis. It is better to conclude
the matter here ...
Having regard to the history of this unusual case, I think the judge came to the right
conclusion. The parties to this litigation are obviously determined to contest every point,
however unmeritorious or trivial. This is the third time that they have visited this Court. If the
bill is remitted to the taxing officer for re-assessment, there is bound to be another reference,
and yet another appeal to this Court. What started as a simple plaint has snowballed to a
wholly disproportionate extent. I shudder to think what sums must have been expended on
this useless litigation. The parties must be protected from the consequences of their own folly.
That is what the judge obviously thought, and I respectfully agree with him. In my view, the
circumstances and history of this case fully justified the judge’s decision to finalise the
matter. I also think that his assessment of the instructions fee was eminently reasonable and
was based on correct principles. I would not interfere with it. I would dismiss the appeal.
There remains the cross-appeal filed by the plaintiffs. The first ground is that the instructions
fee allowed by the judge was manifestly excessive. For the reasons already given, I consider
that this ground fails.
The second ground is stated as follows-
The judge having allowed the reference, was wrong in refusing to make an order that
the [defendants] should refund the taxed-off amount of Shs 32,849 to the [plaintiffs].
What happened was that when the taxing officer taxed the defendants’ bill of costs at Shs
80,183/75, the plaintiffs’ advocates paid that sum to the defendants’ advocates. As a result of
the reference, Shs 32,849 was taxed off, and the plaintiffs were entitled to be repaid that sum.
They applied accordingly, but the judge ruled that as both sides had given notice of their
intention to appeal, the money should remain in the defendants’ advocates’ trust account
pending determination of the appeal. Mr PN Khanna submits that the judge was wrong in this
respect, and I agree with him. The plaintiffs were entitled to be paid this sum, and I would
order that it be paid to them without delay. The more difficult question is whether the
plaintiffs are entitled to interest on this sum by way of restitution, having been deprived of its
use for more than one and half years. Section 91(1) of the Civil Procedure Act seems to me to
apply to this aspect of the appeal. When a party is entitled to restitution by way of an order for
the refund of costs, the Court may make a consequential order for the payment of interest.
Should such an order be made in the circumstances of this case" Mr Lakha submits that it
should not, and that it would be quite wrong for the defendants to have to pay interest as they
have not had the use of the money, which is lying in a trust account, where it does not earn
interest, pursuant to an order of the court. A similar situation arose in Harnan Singh s/o
Jhanda Singh v Jamal Pribhai (1956) 23 EACA 226.
Money had been paid into Court as security for costs by an intending appellant to the Privy
Council. His appeal succeeded, and he applied for payment of interest by the respondent by
way of restitution for the period that the money was lying in Court. The High Court judge
refused to order the payment of interest, and the Court of Appeal agreed with him, on the
ground (as I understand it) that the appellant had paid the money into Court of his own
initiative and the respondent was unable to obtain any benefit from it while it lay there. The
principle appears to me to be the same in this appeal. The plaintiffs paid the original taxed
costs to the defendants; they became entitled to repayment of the amount taxed off by the
judge in his judgment on the reference; they did not secure repayment because the judge

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ordered the money to remain in a trust account where it earned no interest and the defendants
obtained no benefit from it. The position would have been the same if the judge had ordered
the money to be paid into Court. The conclusion I reach is that the defendants should not be
ordered to pay interest on that money by way of restitution.
I would accordingly order that the appeal should be dismissed with costs, and the cross-
appeal allowed to the limited extent of ordering that the defendants do pay to the plaintiffs the
sum of Shs 32,849 within seven days, but without interest. I would award the plaintiffs one-
third of the costs of the cross-appeal.
Wambuzi JA. I agree entirely with the judgment delivered by Law JA which I had the
benefit of reading in draft. I have nothing useful to add. I concur in the orders he has proposed
and, as Miller Ag JA also agrees, there will be an order in the terms proposed by Law JA.
Miller Ag JA. I have had the benefit of reading the draft judgment of Law JA with which I
agree and have nothing to add.
Order accordingly.
Dated and delivered at Nairobi this 24th day of November 1978.
S.W WAMBUZI
......................
JUDGE OF APPEAL
E.J.E LAW
......................
JUDGE OF APPEAL
C.H.E MILLER
............................
AG JUDGE OF APPEAL
I certify that this is a true copy of the original
DEPUTY REGISTRAR

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