JOHN KIMANI NJONGE(personal representative of the estate of NJONGE KIMANI,deceased)& 2 OTHERS vs BORO KINYUA & 5 OTHERS [1998] KECA 67 (KLR)
The bottom line
#Kenya's Court of Appeal slashed a KShs.1.2 million legal fee claim to KShs.60,000, ruling that costs must be fair, not punitive.
What this practically means
#Executive summary
#Key legal issues
#Quantum of instruction fees for an appeal withdrawn before hearing
Instruction fees of KShs.1,200,000 were excessive for an ordinary injunction appeal that was withdrawn about seven days before hearing; KShs.60,000 was reasonable
The taxing officer read the record and considered the nature, importance and difficulty of the appeal. Although the appeal was withdrawn, counsel for the respondents must have prepared, the withdrawal coming only seven days before the hearing date. Nevertheless, because the appeal was never heard, costs had to be reasonable; the claimed figure was far excessive and could not stand.
Whether perusals, attendances and correspondences are separately taxable
They are not; they are governed by rule 9(3) as part of the instructions, following prior taxations in Civil Appeal No. 66 of 1972 and Civil Appeal No. 117 of 1985
Relying on earlier taxation rulings of the Court dating as far back as 1973 and a recent ruling in a 1985 taxation, the officer held that all charges for attendances on the opposite party, correspondences, perusals and consulting authorities are clearly part of the instructions and thus not allowable as separate bill items.
Relevance of the submitting party's means
The submission that the appellants were poor villagers was rejected; the record showed they owned prime plots in the Escarpment Scheme and were not men of straw
Counsel for the respondents pointed out that the appellants owned plots Nos. 345, 346 and 347 in the Escarpment Scheme, described as prime land, and had engaged one of the leading law firms in the Republic up to the Court of Appeal. It could therefore not be said they were men of straw, and they should pay the taxed amount.
Legal principles established
#- Costs on taxation of a party-and-party bill arising from an appeal must be taxed in accordance with the rules and scales in the third schedule to the Court of Appeal Rules
- Charges for attendances on the opposite party, correspondences, perusals and consulting authorities are part of the instruction fees under rule 9(3) and are not allowable as separate items
- Costs payable on taxation should not appear to be a punishment to the unsuccessful party but should fairly reimburse the successful litigant
Court orders
#- 1.Instruction fees on item 4 allowed at KShs.60,000; KShs.1,140,000 taxed off item 4
- 2.Items 2, 3, 5, 7, 8, 9, 10, 11, 12, 13, 14, 16, 18 and 20 of the bill of costs disallowed
- 3.Items 21, 22 and 24 of the bill of costs, including attendances before the taxing officer, disallowed
- 4.The bill of costs filed on 17th June 1997 taxed at KShs.60,670, plus KShs.607 taxing fee, totalling KShs.61,277
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1741 of 1995
- Jurisdiction invoked
- Taxation of a party-and-party bill of costs arising out of an appeal to the Court of Appeal, under the Court of Appeal Rules (rule 108(1) and (2) and the third schedule)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JOHN KIMANI NJONGE(personal representative of the estate of NJONGE KIMANI,deceased)& 2 OTHERS vs BORO KINYUA & 5 OTHERS [1998] KECA 67 (KLR)", Case Analysis (1998). Civil Appeal No. 71 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/67/eng@1998-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.