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Court of AppealDismissedReference from taxation of Bill of Costs arising from Civil Appeal (record lodged 23rd January 2012)· [2017] KECA 77 (KLR)

John Mugambi & 21 others v Kenya National Assurance Company (2001) Limited [2017] KECA 77 (KLR)

Court of Appeal
20 December 2017
GKG. B. M. Kariuki
801 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to reduce a Kshs 7.5 million fee award, confirming judges rarely interfere with a taxing officer's discretion.

What this practically means

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Executive summary

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This was a reference by John Mugambi and 21 others, sitting tenants, against a taxing decision of the Deputy Registrar of the Court of Appeal, J. Wambilyanga, who on 26th January 2017 taxed a party and party Bill of Costs filed by Kenya National Assurance Company (2001) Limited. The underlying litigation concerned houses on LR. No. Nanyuki Municipality/Block 8/898; the applicants' injunction applications were dismissed by the High Court (Sergon, J.), the appeal to the Court of Appeal was dismissed for non-attendance in 2014, and a motion to reinstate failed with costs on 3rd March 2016, precipitating the respondent's Bill of Costs. Item 1 of the Bill claimed instructions fees of Kshs 7.5 million; the applicants contended only Kshs 1,500 was payable and that the Taxing Officer had wrongly applied the Advocates Remuneration Order, which governs High Court taxation, rather than the Third Schedule of the Court of Appeal Rules. G. B. M. Kariuki, JA, held that the reference to the ARO was merely a guide to the exercise of discretion, that items 2 and 3 were taxed under the Third Schedule, and that no inflation resulted. He found no evidence of wrong principles or an excessive award and, though he might have taxed the item differently, declined to interfere with the Taxing Officer's discretion. The reference was dismissed.

Key legal issues

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01

Whether reference to the Advocates Remuneration Order in the taxing ruling vitiates the taxation

Holding

It does not; the ARO was used only as a guide, and the operative provisions applied were those of the Third Schedule of the Court of Appeal Rules.

Reasoning

The Taxing Officer, constituted under Rule 111(1) of Part 5 of the Court of Appeal Rules read with Rule 2, referred to the ARO only as a guide to her discretion on instructions fees. Items 2 and 3 of the Bill were taxed with express reference to the Third Schedule of the Court's Rules. It was not suggested the taxed amount was inflated by the ARO reference, so the complaint was misplaced.

p. 2
02

Whether the taxed instructions fee of Kshs 7.5 million was excessive and the Taxing Officer's discretion wrongly exercised

Holding

No basis was shown for interference; the discretion was properly exercised and there was no evidence of wrong principles or an excessive award.

Reasoning

The applicable standard under paragraph 9 of the Third Schedule is reasonableness, considering the amount involved, the nature, importance and difficulty of the matter, the parties' interests, other costs, the general conduct of proceedings, and all other relevant circumstances. Counsel's suggestion that only Kshs 1,500 was payable was dismissed as flippant, and no evidence of wrong principles or excessiveness was demonstrated.

p. 2

Legal principles established

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  • A Taxing Officer may refer to the Advocates Remuneration Order as a guide in exercising discretion on instructions fees under the Third Schedule of the Court of Appeal Rules without the taxation being thereby erroneous, provided the taxed amount is not inflated as a result.
  • A reference against taxation will not succeed merely because the judge would have taxed an item differently; interference requires proof that wrong principles were applied or that the amount taxed was excessive.

Court orders

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  1. 1.Dismissal of the reference
  2. 2.Costs of the reference to the respondent (as per the prior dismissal with costs to the respondent, no contrary order made on costs in the ruling text)

Authorities

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Legislation

  • Court of Appeal RulesPart 5, Rule 111(1)
  • Court of Appeal RulesPart 5, Rule 2
  • Court of Appeal RulesThird Schedule, paragraph 9(1)
  • Court of Appeal RulesThird Schedule, paragraph 9(2)
  • Advocates ActAdvocates Remuneration Order, paragraph 1(b)
On appeal from
Deputy Registrar of the Court of Appeal (Taxing Officer, J. Wambilyanga)
Bill of Costs dated 17th July 2016; ruling dated 26th January 2017
Jurisdiction invoked
Part 5 of the Court of Appeal Rules (reference against taxation by the Deputy Registrar as Taxing Officer)

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, "John Mugambi & 21 others v Kenya National Assurance Company (2001) Limited [2017] KECA 77 (KLR)", Case Analysis (2017). Reference from taxation of Bill of Costs arising from Civil Appeal (record lodged 23rd January 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/77/eng@2017-12-20

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