High Court dismisses Senator Ojienda’s MCSK representation fee tax case

Milimani Law Courts, Nairobi.

The High Court has rejected a bid by Kisumu Senator Prof Tom Ojienda to review a ruling that taxed his bill of costs at Sh 1,144,167.58.

The bill emanated from his representation of the Music Copyright Society of Kenya in a 2018 case against Music Publishers Association of Kenya Limited.

Justice Wambua Mongare dismissed the Senator’s application for lack of merit.

Ojienda wanted the court to order the taxman to tax his bill afresh. He also sought an order to have the court interrogate the costs in light of actual work done and adopt his proposal on taxation of the costs.

The senator argued that the value of the subject matter was Sh1 billion which, according to him, derived from the registration, income, assets and expenses of the Music Copyright Society of Kenya. 

The court heard that MCSK reached an out of court settlement without Ojienda’s knowledge.

“I am persuaded that despite the fact that the suit was settled before going into full trial, it is not true, as alleged by the applicant, that the taxing master did not consider the gravity of the suit before taxing the instruction fees,” Justice Mongare ruled.

Therefore the judge found no reason to interfere with the Taxing Officer’s decision of 22nd July 2021 and dismissed the application with costs to MCSK.

In Ojienda’s view, the subject matter of the suit was Sh1 billion and was calculated based on the monies that were receivable by the MCSK in the year 2018.

He told the court that the said amount would be received precisely through money/loyalties from copyrighted musical work of its 13,961 members, the respective 13,916 deeds of Management Organizations around the world evident from the MCSK’s catalogue that monies were subject of the suit.

However, the judge ruled that Ojienda failed to prove that the subject matter of the bill was Sh 1 billion.

“I find that the applicant has not provided any evidence to prove this allegation through pleadings, a judgement, a settlement. It is not enough for the applicant to make such allegations without evidence on the same,” the judge ruled.

MCSK opposed the application arguing that in charging fees as drawn in the bill under item one at Sh 35 million as instruction fees and purporting to base the same on the alleged music catalogue worth Sh 1 billion purportedly owned by the company and in the absence of evidential material to support the same, the same was mere allegations and not true or possible and could not be sustained. 

MCSK agreed with the Taxing Master and stated that the assessment was correct and the taxing master correctly exercised discretion on the same while basing taxation on applicable scale and in light of the amount of work actually done by Ojienda on the matter.