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Court of AppealOtherCivil Appeal 77 of 1997

REPUBLIC v SUKUMA WIKI CO-OPERATIVE SOCIETY LTD & 8 others Ex-parte DANIEL MACHARIA & 5 others [1998] KECA 36 (KLR)

Court of Appeal of Kenya
10 December 1998
TLT. S. Luvuga
661 words in judgment
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The bottom line

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Kenya's Court of Appeal taxing officer slashed a KShs.400,000 fee claim to KShs.70,000, ruling appeal costs must reflect the narrower scope of appellate work.

What this practically means

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Executive summary

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This is a ruling on taxation delivered on 10th December 1998 by T. S. Luvuga, Deputy Registrar, in Civil Appeal 77 of 1997. The bill of costs, filed by the appellants on 20th July 1998, arose from a judgment of the Court of Appeal allowing the appeal with costs to the appellants; the underlying appeal was from a judgment of the High Court (Shah J) dated 5th October 1994 in Misc. C.A. No. 1111 of 1994. Counsel for the interested parties objected to items 5, 7 and 8, submitting the matter was not complicated and proposing instructions fees of KShs.35,000/=, while counsel for the appellants justified the KShs.400,000/= claimed under item 5 by reference to the stakes involved, including three prime commercial properties in Nairobi owned by the co-operative society. The taxing officer noted the parties' agreements: KShs.1,000/= taxed off item 7, KShs.8,000/= off item 8, and item 14 disallowed by consent. On item 5, the officer held that preparation in the High Court is normally wider than on appeal, where points are narrowed down, and there was no indication of exceptional complexity; comparing the KShs.120,000/= awarded in the High Court, KShs.70,000/= was allowed as reasonable instructions fee. The KShs.2,000/= security was taxed off disbursements as refundable, and because more than one quarter of the profit costs was disallowed, items 24, 25 and the costs of filing and attending taxation were disallowed. The bill was taxed at KShs.104,445/= in all.

Key legal issues

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01

Reasonableness of instructions fee on appeal

Holding

Instructions fee of KShs.400,000/= was excessive; KShs.70,000/= allowed

Reasoning

The taxing officer reasoned that preparation in the High Court is normally wider, with more research, than in the Court of Appeal where points are narrowed down, and there was no indication of exceptional complexity in this appeal. The costs awarded in the High Court (KShs.120,000/=) were also a relevant comparator. Balancing these factors, KShs.70,000/= was considered reasonable.

p. 2
02

Claimability of appeal security as a disbursement

Holding

The KShs.2,000/= security was taxed off from disbursements

Reasoning

Because security in the appeal is refundable to the party who paid it, it does not represent a genuine expense incurred and cannot be recovered twice by inclusion in the bill of costs as a disbursement.

p. 2

Legal principles established

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  • Security paid in an appeal is refundable and cannot be claimed in a bill of costs as a disbursement
  • Where more than one quarter of the profit costs claimed is disallowed on taxation, items 24, 25 and the costs of filing and attending the taxation are disallowed

Court orders

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  1. 1.KShs.1,000/= taxed off item 7
  2. 2.KShs.8,000/= taxed off item 8
  3. 3.Item 14 disallowed by consent
  4. 4.Instructions fee under item 5 allowed at KShs.70,000/= instead of the KShs.400,000/= claimed
  5. 5.KShs.2,000/= (security) taxed off from disbursements
  6. 6.Items 24, 25 and the costs claimed for filing and for attending taxation disallowed
  7. 7.The bill of costs filed on 20th July, 1998 taxed at KShs.103,410/= plus KShs.1,035/=, making KShs.104,445/= in all
On appeal from
High Court of Kenya at Nairobi
Misc. C.A. No. 1111 of 1994
Jurisdiction invoked
Taxation of a bill of costs arising from a judgment of the Court of Appeal allowing the appeal with costs to the appellants; the ruling is by the Deputy Registrar as taxing officer

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "REPUBLIC v SUKUMA WIKI CO-OPERATIVE SOCIETY LTD & 8 others Ex-parte DANIEL MACHARIA & 5 others [1998] KECA 36 (KLR)", Case Analysis (1998). Civil Appeal 77 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/36/eng@1998-12-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.