Kenya Anti-Corruption Commission v Marshalls East Africa Ltd & another [2019] KECA 358 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a Kshs. 10 million fee award, confirming courts rarely disturb taxing officers' decisions unless they made a clear error of principle.
What this practically means
#Executive summary
#Key legal issues
#Whether the High Court Judge properly exercised his discretion in upholding the taxing officer's award of instruction fees
The appeal against the award fails; the Judge exercised his discretion judicially, based his decision on relevant material including the complexity and novelty of the Goldenberg-related dispute, the substantial subject matter, and the appointment of a receiver, and did not misdirect himself.
The Court applied the settled principles: costs are at the court's discretion, exercised judicially; an appellate court interferes only on established grounds of misdirection or irrelevant considerations. The Judge correctly identified the principles, took into account relevant material (95% shareholding claim worth billions, receivership, complexity), and made an ultimate factual finding that the award was neither low nor high. No material justified overturning the decision.
Whether the dispute was complex, justifying the instruction fees awarded
The dispute was complex and novel; complexity may be gleaned from the pleadings where no evidence was led, and the volume of records and the value of the subject matter were themselves evidence of complexity.
The suit sought recovery of 95% of the shareholding of nearly nine companies, translating to billions of shillings; the Government appointed a Commission of Inquiry into the Goldenberg scandal; voluminous records were filed; and the appellant's own lead counsel, Dr. Gibson Kamau Kuria, admitted the dispute was complex, as did Ojwang and Mwera, JJ. The appointment of a receiver/manager substantially affected the respondents' operations.
Legal principles established
#- Costs are awarded at the unfettered and absolute discretion of the court, to be exercised judicially, in accordance with reason and justice, and not arbitrarily, upon some material.
- An appellate court will only interfere with the exercise of discretion if the judge misdirected himself, acted on matters he should not have acted upon, or failed to take relevant matters into consideration, arriving at a wrong conclusion.
- Costs are awarded to compensate the successful party for the trouble taken in prosecuting or defending the case, not to punish the unsuccessful party.
- Costs will be awarded whether a suit is determined on merit, compromised by consent, terminated on the court's own motion, or withdrawn; costs follow the event unless there is good reason otherwise.
- A court may interfere with a taxing officer's decision only where the taxing officer erred in principle, took into account irrelevant factors, or the award is on its face obviously high or low.
Court orders
#- 1.The appeal is dismissed
- 2.The appellant to pay the costs of the appeal
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. (O.S) No. 1111 of 2003
- Jurisdiction invoked
- First appellate jurisdiction over the High Court under the Court of Appeal's statutory appellate powers (Civil Procedure Act regime governing costs and taxation references)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Dache v Otieno (Environment and Land Appeal E001 of 2025) [2026] KEELC 1545 (KLR)[2026] KEELC 1545 (KLR)12 Mar 2026
Cite this brief
#Cite this brief
Caselaw, "Kenya Anti-Corruption Commission v Marshalls East Africa Ltd & another [2019] KECA 358 (KLR)", Case Analysis (2019). Civil Appeal No. 84 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/358/eng@2019-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.