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Court of AppealDismissedNot stated in judgment· [2011] KECA 98 (KLR)

Kenya Ports Authority v Kustron (Kenya) Ltd (Civil Appeal 315 of 2005) [2011] KECA 98 (KLR)

Court of Appeal of Kenya
7 October 2011
EOE. O. O'Kubasu
991 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to disturb a taxing officer's costs decision, confirming that correct application of settled principles defeats any challenge.

What this practically means

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Executive summary

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This was a reference from the ruling of the Deputy Registrar of the Court of Appeal at Nairobi, delivered on 21st December 2010, taxing the appellant's bill of costs drawn at K.Shs.2,955,066 in 49 items, of which items 1, 7, 18, 46, 47 and 49 were contested. The central dispute concerned item 1, the instruction fee for the appeal, which the appellant's counsel sought to tax at K.Shs.2,200,000 plus getting-up fees of K.Shs.733,333. The Deputy Registrar, guided by paragraph 9(2) of the Third Schedule of the Court of Appeal Rules and the four principles in Premchad & Another v Quarry Services of East Africa Ltd (1972) EA 162, noted the decreed sum was in US dollars but found the appeal not so complex as to require extensive research, and taxed the instruction fee at Kshs.800,000, with total costs of Kshs.861,462 after adding the 5% taxation fee. Before O'Kubasu, JA, the appellant argued the matter was exceedingly complex and sought not less than one million shillings; the respondent maintained no sufficient material showed the sum was grossly inadequate. The court held the Deputy Registrar adopted the correct approach and applied appropriate principles, found no material justifying interference with the taxing master's discretion, and dismissed the reference with costs on 7th October 2011. The ruling below was thereby affirmed.

Key legal issues

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01

Discretion of the taxing master under paragraph 9(2) of the Third Schedule of the Court of Appeal Rules

Holding

The taxing officer properly exercised his discretion in fixing the instruction fee at Kshs.800,000 after considering the amount involved, the nature and difficulty of the appeal, and the Premchad principles.

Reasoning

Paragraph 9(2) requires the fee for instructions to appeal to be such sum as the taxing officer considers reasonable, having regard to the amount involved, the nature, importance and difficulty of the appeal, the interests of the parties, and all other relevant circumstances. The Deputy Registrar took judicial notice of the decreed sum in US dollars, found the appeal not unduly complex, weighed the Premchad principles, and taxed the instruction fee at Kshs.800,000. The court found no material justifying interference with that discretion.

p. 3
02

Interference with discretionary decisions on reference from taxation

Holding

An appellate judge on a reference will not disturb the taxing master's decision where the correct principles were applied and no material shows the discretion was improperly exercised.

Reasoning

The appellant contended the matter was exceedingly complex and sought a figure of not less than one million shillings. The respondent argued no sufficient material showed the sum was grossly inadequate and that the taxing officer set out the correct principles. The court agreed that the Deputy Registrar adopted the correct approach and applied appropriate principles, and, absent material justifying interference, dismissed the reference with costs.

p. 3

Legal principles established

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  • A reference against a taxing officer's ruling will not succeed unless material is presented showing that the taxing officer misdirected himself or that the exercise of discretion warrants interference; where the correct principles are applied, the court will not interfere.

Court orders

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  1. 1.The reference is dismissed with costs
  2. 2.The ruling of the Deputy Registrar taxing the instruction fee at Kshs.800,000 and total costs at Kshs.861,462 is upheld

Authorities

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Legislation

  • Court of Appeal RulesThird Schedule, paragraph 9(1)
  • Court of Appeal RulesThird Schedule, paragraph 9(2)
  • Court of Appeal RulesSecond Schedule, Part V, paragraph 20

Cases cited (1)

  • Premchad & Another vs. Quarry Services of East Africa Limited & Others
    (1972) EA 162
On appeal from
Court of Appeal of Kenya (Deputy Registrar, taxing master)
Not stated in judgment
Jurisdiction invoked
Reference against the ruling of the Deputy Registrar on taxation of costs under the Court of Appeal Rules, Third Schedule

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, "Kenya Ports Authority v Kustron (Kenya) Ltd (Civil Appeal 315 of 2005) [2011] KECA 98 (KLR)", Case Analysis (2011). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/98/eng@2011-10-07

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