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Court of AppealPartially AllowedCivil Appeal (Application) No. 59 of 1996· [1998] KECA 193 (KLR)

E. A. Building Society Limited v A.C.A. D'souza & another [1998] KECA 193 (KLR)

Court of Appeal of Kenya
28 August 1998
1,187 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled a judge went too far by adding VAT to taxed costs when that issue was never raised, and set the VAT award aside.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal (Gicheru, Omolo and Owuro JJ.A) on an application by E.A. Building Society Limited under Rule 109(5) of the Court's Rules, seeking variation of an order made by a single Judge (Shah JA). The respondents, having successfully opposed the applicant's appeal, had their bill of costs taxed by a Deputy Registrar at Shs.15,635/=. On their reference under Rule 109(2), the single Judge increased the instruction fees from Shs.10,000/= to Shs.20,000/= and also awarded VAT at 15% on the taxed costs, although the respondents' reference had not raised the VAT issue. The full court held that a Rule 109(2) reference confines the Judge to deciding whether a taxed bill is manifestly excessive or inadequate; whether VAT is awardable is a question of law or principle requiring a Rule 109(1) reference. The single Judge therefore decided a matter not validly raised before him, justifying interference. The court reaffirmed that a full court may interfere with a single Judge's decision only where the Judge took into account an irrelevant fact, failed to take into account a relevant fact, or misapprehended the law. The application was allowed, the VAT order set aside, and costs of the application awarded to the applicant. The court expressly declined to rule on whether VAT is payable on taxed costs, reserving that question for a case where it is properly raised.

Key legal issues

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01

Scope of a single Judge's powers on a Rule 109(2) reference

Holding

The single Judge exceeded his jurisdiction by deciding the VAT question, which was a matter of law or principle requiring a Rule 109(1) reference, not a Rule 109(2) reference on manifest inadequacy

Reasoning

The respondents' reference was made under Rule 109(2), which confines the Judge to deciding whether the bill as taxed is manifestly excessive or inadequate and permits addition or deduction to render it reasonable. Whether VAT is awardable on taxed costs is a question of law or principle, which only arises under Rule 109(1). The respondents made no cross-reference on VAT, so the Judge was not entitled to resolve it, and doing so amounted to taking into account an irrelevant point or failing to take into account a relevant point.

p. 2
02

Whether VAT is automatically awardable on taxed costs

Holding

Left open; the court expressly declined to decide the question, noting no law specifically provides for automatic award of VAT on taxed costs

Reasoning

The court observed that, as far as it was aware, no law specifically provides that VAT is to be automatically awarded on taxed costs, but because the issue was not properly raised before the single Judge, the full court would not determine it. The question was reserved for another occasion when properly raised.

p. 2

Legal principles established

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  • A single Judge's decision on a taxing-officer reference binds the full court unless the single Judge took into account an irrelevant fact, failed to take into account a relevant fact, or misapprehended the law
  • A Judge on a Rule 109(2) reference may only decide whether a taxed bill is manifestly excessive or manifestly inadequate, and may not determine questions of law or principle not properly raised before him

Court orders

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  1. 1.The application to the full court under Rule 109(5) is allowed
  2. 2.The order of the single Judge imposing VAT at 15% on the taxed costs is set aside
  3. 3.Costs of the application awarded to the applicant

Authorities

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Legislation

  • Court of Appeal RulesRule 109(1)
  • Court of Appeal RulesRule 109(2)
  • Court of Appeal RulesRule 109(3)
  • Court of Appeal RulesRule 109(4)
  • Court of Appeal RulesRule 109(5)
  • Court of Appeal RulesThird Schedule, paragraph 12

Cases cited (1)

  • SAMAKI INDUSTRIES (NAIROBI) LTD VS SAMAKI INDUSTRIES (K) LTD
    Civil Application No. NAI 260 of 1996 (98/96UR) [Unreported]
On appeal from
High Court of Kenya at Mombasa (decision of single Judge Shah, JA)
H.C.C.C. No. 155 of 1994 (consolidated with H.C.C.C. No. 156 of 1994)
Jurisdiction invoked
Rule 109(5) of the Court of Appeal Rules - application to the full court to vary, discharge or reverse a decision of a single Judge

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "E. A. Building Society Limited v A.C.A. D'souza & another [1998] KECA 193 (KLR)", Case Analysis (1998). Civil Appeal (Application) No. 59 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/193/eng@1998-08-28

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