Rogan-Kamper v Grosvenor [1978] KECA 27 (KLR)
The bottom line
#Kenya's appellate court confirmed that judges reviewing taxed legal fees may only step in when the amount is unreasonably high or low—not merely different.
What this practically means
#Executive summary
#Key legal issues
#Whether the tests of reasonableness (taxing officer) and manifest excess or inadequacy (judge on reference) are synonymous
They are synonymous; both connote the same datum point, so the taxing officer and the reviewing judge work with a similar approach.
The court construed rule 109(2) together with paragraph 9(2) of the Third Schedule. Something manifestly excessive or inadequate cannot be reasonable, and something reasonable cannot be manifestly excessive or inadequate. The expressions therefore share the same datum point, meaning a judge on reference applies the reasonableness standard, intervening only where the taxed bill falls outside the bracket of reasonableness in all the circumstances.
Scope of the judge's power on a rule 109(2) reference
The judge may make only such deduction or addition as will render the bill reasonable, and only where the bill as taxed is in all the circumstances manifestly excessive or manifestly inadequate; there is no reference on a question of quantum only.
The court read rule 109(2) and (5) as confining both the judge and the full court: the judge's jurisdiction is limited to correcting a bill that is manifestly excessive or inadequate, and the court's power on a rule 109(5) reference is limited to varying, discharging or reversing that limited decision. The judge will not substitute his own figure unless the taxed sum is outside reasonable limits.
Whether comparable cases may guide the assessment of a reasonable bill of costs
Comparable cases can guide the taxing officer and the court, and recent comparables may justify a finding that a taxed bill is manifestly excessive even allowing for inflation.
Rejecting a contrary contention, the court held that although these matters differ from case to case, comparable cases remain a legitimate guide. Law JA had found the taxing officer allowed almost double the fees allowed in recent comparable cases, and that making allowance for inflation the bill was manifestly excessive. The court also cautioned against fee inflation that prices legitimate litigation out of the reach of ordinary citizens.
Legal principles established
#- On a reference under rule 109(2), a judge may not substitute his own figure for that allowed by the taxing officer unless the taxed sum is outside reasonable limits so as to be manifestly excessive or manifestly inadequate.
- The expressions 'manifestly excessive' and 'manifestly inadequate' in rule 109(2) and the concept of reasonableness in paragraph 9(2) of the Third Schedule connote the same datum point.
- The court on a rule 109(5) reference may do no more than vary, discharge or reverse the limited decision of a judge given under sub-rule (2).
Court orders
#- 1.The reference to the full court is dismissed with costs
- On appeal from
- High Court at Nairobi
- Civil Case No 786 of 1971
- Jurisdiction invoked
- Rule 109(5) of the Court of Appeal for East Africa Rules, 1972
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rogan-Kamper v Grosvenor [1978] KECA 27 (KLR)", Case Analysis (1978). Reference under rule 109(5) of the Court of Appeal for East Africa Rules, 1972, arising from Civil Case No 786 of 1971. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1978/27/eng@1978-03-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.