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Court of AppealOtherCiv Appli 77 of 1997

REPUBLIC v COMMISSIONER FOR CO-OPERATIVE SOCIETIES & 9 others Ex-parte DANIEL MACHARIA & 5 others [1998] KECA 37 (KLR)

Court of Appeal of Kenya
10 December 1998
TLT. S. Luvuga
661 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal taxation ruling slashed a KShs.400,000 legal fee claim to KShs.70,000, showing courts will cut inflated bills of costs.

What this practically means

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Executive summary

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This document is not an appellate judgment but a ruling on taxation delivered by T. S. Luvuga, Deputy Registrar, at Nairobi on 10th December 1998, in Civil Appeal 77 of 1997. It arises from a judgment of the Court of Appeal allowing the appeal with costs to the appellants (the Republic, in an ex-parte matter against the Commissioner for Co-operative Societies, with Sukuma Wiki Co-operative Society Ltd and others as interested parties). The bill of costs filed by the appellants on 20th July 1998 came for taxation. Counsel for the interested parties (Mr Kamonde, adapted by Mr Gichuru) objected to items 5, 7 and 8, contending the matter was not complicated, involved evidence rather than law, and proposing instructions fees of KShs.35,000/=, noting the High Court had allowed KShs.120,000/=. Mr Kahonge, for the taxing party, justified the KShs.400,000/= instructions fee by reference to the stakes - three prime commercial properties in Nairobi - and the need to peruse the record, the Co-operative Society Act, by-laws and legal notices. By consent, KShs.1,000/= was taxed off item 7, KShs.8,000/= off item 8, and item 14 was disallowed. On item 5, the taxing officer held that appellate preparation is normally narrower than High Court preparation absent exceptional complexity, found none here, and allowed KShs.70,000/=. The KShs.2,000/= security was taxed off disbursements as refundable, and because more than one quarter of profit costs was disallowed, items 24, 25 and taxation-attendance costs were disallowed. The bill was taxed at KShs.104,445/= in total.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the instructions fee of KShs.400,000/= claimed under item 5 of the bill of costs was reasonable
  2. 2.Whether the security of KShs.2,000/= paid in the appeal is claimable as a disbursement
  3. 3.Whether items 24, 25 and the costs of filing and attending taxation fall to be disallowed because more than one quarter of the profit costs was disallowed

Key legal issues

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01

Reasonableness of instructions fee on appeal

Holding

The taxing officer reduced the claimed instructions fee from KShs.400,000/= to KShs.70,000/=, reasoning that appellate preparation is normally narrower than High Court preparation and that the appeal showed no exceptional complexity

Reasoning

The officer compared the claim with the KShs.120,000/= allowed in the High Court, noted that on appeal the points are narrowed down, and found no indication that this appeal was exceptionally complex. Counsel for the interested parties had proposed KShs.35,000/=; the officer considered all factors and fixed KShs.70,000/= as reasonable.

p. 3

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, the costs of filing and of attending the taxation are themselves disallowed

Court orders

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  1. 1.KShs.1,000/= taxed off item 7 by consent
  2. 2.KShs.8,000/= taxed off item 8 by consent
  3. 3.Item 14 disallowed by consent
  4. 4.Instructions fee (item 5) taxed at KShs.70,000/= in place of the KShs.400,000/= claimed
  5. 5.KShs.2,000/= taxed off from disbursements as refundable security
  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/=, totalling KShs.104,445/=

The bench

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One judgment of the whole court — no separate or dissenting opinions.

TL
majority

Wrote the judgment

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 an appeal already allowed by the Court of Appeal with costs to the appellants; no constitutional or statutory provision is invoked in the ruling

Relief refused

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Instructions fee of KShs.400,000/= as claimed

The fee was excessive relative to the work involved in the appeal, given that preparation in the High Court is normally wider and costs in the High Court were only KShs.120,000/=

p. 3

Claim for KShs.2,000/= security as a disbursement

Security in the appeal is refundable and therefore not claimable in the bill of costs

p. 3

Costs

The bill of costs filed by the appellants on 20th July, 1998 is taxed at KShs.103,410/= plus KShs.1,035/=, making in all KShs.104,445/=.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Normally in the High Court preparation in a case is much more wider with research than in Court of Appeal as in the appeal the points are narrowed down unless in the exceptional circumstances the appeal may turn up to be more complex.
p. 3Appellate vs High Court preparation in taxation
In the result the bill of costs filed by the appellants on 20th July, 1998 is taxed at KShs.103,410/= which is to be added a sum of KShs.1,035/= making in all Kshs.104,445/.=
p. 3Final orders - amount of taxation
Security in this appeal will be refundable and therefore it cannot be claimed in the bill of costs as is the case here under disbursements.
p. 3Refundable security not claimable as disbursement

Issues in the judgment

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material

This document is a ruling on taxation by a Deputy Registrar, not a judgment of the Court of Appeal judges; it decides only the quantum of a bill of costs and sets no appellate precedent

minor

The document is a certified copy bearing a certification by the Deputy Registrar rather than the original signed judgment

minor

The final figure is printed with an apparent typographical error in the shillings notation

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 COMMISSIONER FOR CO-OPERATIVE SOCIETIES & 9 others Ex-parte DANIEL MACHARIA & 5 others [1998] KECA 37 (KLR)", Case Analysis (1998). Civ Appli 77 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/37/eng@1998-12-10

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