Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No. 84 of 2017· [2019] KECA 358 (KLR)

Kenya Anti-Corruption Commission v Marshalls East Africa Ltd & another [2019] KECA 358 (KLR)

Court of Appeal
27 September 2019
2,538 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

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

#
The Kenya Anti-Corruption Commission appealed against a High Court ruling (Sergon, J, dated 23 October 2015 in H.C.C.C. (O.S) No. 1111 of 2003) refusing to set aside a taxing officer's award of instruction fees of Kshs. 5,000,000 to each of the two respondents. The respondents had been sued in an originating summons alleging that 95% of shares in various companies were acquired through the Goldenberg scandal; a receiver/manager was appointed ex parte, but the suit was compromised and withdrawn before hearing. The respondents taxed their bills, and the appellant's reference to the High Court alleged the award was manifestly excessive and based on errors of principle. The Judge declined to interfere, holding the dispute was complex. On appeal, Ouko, Makhandia and Kantai, JJ.A. set out the settled principles: costs are at the court's unfettered discretion, to be exercised judicially; costs compensate rather than punish; costs follow the event; and an appellate court interferes with discretion only on established grounds of misdirection or irrelevant considerations. The Court found the Judge had reminded himself of the correct principles and based his decision on relevant material: the claim to 95% of shareholdings worth billions, the appointment of a receiver/manager causing 'shock waves' to shareholders, voluminous records, the Government's Commission of Inquiry into the Goldenberg scandal, and the admission by the appellant's own counsel, Dr. Gibson Kamau Kuria, that the matter was complex. The Court found the dispute not only complex but novel, found no material justifying interference, and dismissed the appeal with costs.

Key legal issues

#
01

Whether the High Court Judge properly exercised his discretion in upholding the taxing officer's award of instruction fees

Holding

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.

Reasoning

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.

p. 3
02

Whether the dispute was complex, justifying the instruction fees awarded

Holding

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.

Reasoning

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.

p. 3

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. 1.The appeal is dismissed
  2. 2.The appellant to pay the costs of the appeal

Authorities

#

Legislation

  • Civil Procedure ActSection 27(1)

Cases cited (6)

  • Farah Awad Gullet v CMC Motors Group Limited
    Nakuru Civil Appeal No. 206 of 2015
  • Githiaka versus Nduriri
    [2004] 2 KLR
  • Mbogo & Another v. Shah
    [1968] E.A. 93
  • Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others
    Supreme Court Petition No. 4 of 2012
  • Impressa Ing Fortunato Federice v. Nabwire
    (2001) 2 EA 383
  • Halsbury's Laws of England, 4th Edition (Re-issue), (2010), Vol. 10, para 16
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.

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.