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Court of AppealDismissedCivil Reference following Appeal No. 307 of 2013 (reference filed 27th July 2016)· [2016] KECA 193 (KLR)

Keziah Njambi Maingi v Barclays Bank of Kenya Limited [2016] KECA 193 (KLR)

Court of Appeal of Kenya
7 October 2016
RNR. N. Nambuye
2,115 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal dismissed Barclays Bank's challenge to a Kshs.600,000 instruction fee award, confirming judges rarely disturb a taxing officer's decision unless an error of principle is shown.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Nambuye, JA) on a reference under Rule 112 of the Court of Appeal Rules against a taxation ruling of Deputy Registrar A. Nyoike of 19th July 2016. The taxation arose from costs payable to the appellant, Keziah Njambi Maingi, following the successful determination of her Appeal No. 307 of 2013 against Barclays Bank of Kenya Ltd on 14th November 2014. The taxing officer awarded Kshs.647,052, including Kshs.600,000 instructions fees under paragraph 9(2) of the Third Schedule. The respondent lodged a reference complaining that the award was manifestly excessive, that the taxing officer contradicted herself in stating the issues were not complex yet awarding high instructions fees, and that there was double taxation. The appellant opposed, arguing the reference offended Rule 112(2) as being against quantum only, and was out of time under Rule 112(3). The court held it had jurisdiction because the complaint attacked the principle relied on (the respondent's endowment) and the instructions fees item, not quantum alone. Applying Kipkorir, Too & Kiara Advocates v Deposit Protection Fund Board and Arthur v Nyeri Electricity Undertaking, the court found the taxing officer had properly applied paragraph 9(2) and the Premchand Raichand principles; the reference to the respondent's endowment was not made in isolation. The reference was dismissed with no order as to costs. The taxation ruling was affirmed. This binds subordinate taxing officers and judges on reference: no interference absent an error of principle, and no reference on quantum alone under Rule 112(2).

Key legal issues

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01

Whether the reference was incompetent as being against quantum only

Holding

The reference was not solely against quantum because it attacked the principle applied in fixing instructions fees, so the court had jurisdiction to entertain it.

Reasoning

Rule 112(2) bars references on quantum only, but the respondent's complaint targeted item (4) of the bill, the instructions fees, and specifically the principle that the award was justified because the respondent was financially endowed. Since an error of principle was alleged, the bar on quantum-only references did not apply and the judge's jurisdiction under Rule 112 was properly invoked.

p. 4
02

Whether the taxing officer erred in principle in awarding Kshs.600,000 instructions fees

Holding

No error of principle was established; the reference was dismissed.

Reasoning

The taxing officer applied the Premchand Raichand principles and paragraph 9(2) of the Third Schedule, considering the amount, nature, importance and difficulty of the appeal and the parties to bear the costs. The remark about the respondent being endowed was not made in isolation but alongside the other mandated considerations, so the correct approach was taken and the discretion was properly exercised.

p. 4

Legal principles established

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  • On a reference from a taxing officer, a judge will not interfere with the exercise of the taxing officer's discretion unless the taxing officer erred in principle; questions solely of quantum are for the taxing officer and interfere only in exceptional cases.
  • A reference that complains only of quantum is barred by Rule 112(2); the judge has jurisdiction only where an error of law or principle is shown.

Court orders

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  1. 1.The reference is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Court of Appeal RulesRule 112(1)
  • Court of Appeal RulesRule 112(2)
  • Court of Appeal RulesRule 112(3)
  • Court of Appeal RulesThird Schedule, paragraph 9(1)
  • Court of Appeal RulesThird Schedule, paragraph 9(2)
  • Court of Appeal RulesThird Schedule, paragraph 9(3)

Cases cited (5)

  • Premchand Raichand Limited & Another v Quarry Services of East Africa Limited and Another
    [1972] E.A. 162
  • Kipkorir, Too & Kiara Advocates v Deposit Protection Fund Board
    (2005) eKLR
  • Arthur v Nyeri Electricity Undertaking
    [1961] EA 497
  • Devshi Dhanji v Kanji Naran Patel (No. 2)
    [1978] KLR 243
  • D'Souza v Ferrao
    [1960] EA 602
On appeal from
High Court of Kenya / Taxing Officer (Deputy Registrar A. Nyoike)
Taxation ruling in respect of costs in Court of Appeal Appeal No. 307 of 2013 (arising from H.C.C.C. No. 773 of 2012)
Jurisdiction invoked
Rule 112(1) and (2) of the Court of Appeal Rules (reference from a taxing officer's decision)

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, "Keziah Njambi Maingi v Barclays Bank of Kenya Limited [2016] KECA 193 (KLR)", Case Analysis (2016). Civil Reference following Appeal No. 307 of 2013 (reference filed 27th July 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/193/eng@2016-10-07

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