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Court of AppealDismissedCivil Appeal 69 of 2017· [2022] KECA 832 (KLR)

Kuria v Kiru Tea Factory Co. Ltd

Court of Appeal
29 July 2022
HOHannah OkwenguFSF. SichaleAMA. Mbogholi-Msagha
2,071 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that taxing officers have wide discretion on legal fees when a case's value cannot be determined from the pleadings.

What this practically means

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Executive summary

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This was a second appeal against a High Court ruling (Mshila, J, dated 30 March 2017) dismissing the appellant's reference against a taxing master's decision reducing a party and party bill of costs from Kshs. 105,395 to Kshs. 49,830. The underlying dispute arose from tea dues the appellant claimed against the respondent in the magistrate's court; after the defence was struck out, the respondent's appeal to the High Court failed, generating the bill of costs in question. The appellant advanced two grounds: that the learned judge failed to appreciate the basis of taxation and erred in principle, and that the courts below failed to apply the minimum fees provisions of the Advocates Remuneration Orders. He argued, relying on Joreth Ltd v Kigano & Associates, that instruction fees should have been pegged on the value of the subject matter ascertainable from the parent pleadings (a liquidated claim of Kshs. 458,887), and that the 2014 ARO rather than the 2009 ARO applied to item 3 of the bill. Guided by Section 72(1) of the Civil Procedure Act confining second appeals to matters of law, and the discretion-interference principles in Mbogo v Shah, Kipkorir Tito & Kiara and Kamunyori & Co Advocates, the Court held that the ascertainable value from the pleadings related only to the magistrate's court costs; the High Court costs arose from the appeal against striking out the defence, whose subject matter was not ascertainable since the case never went to full hearing. The taxing master's discretion, exercised with reasons for applying the 2009 and 2014 ARO, could not be faulted. The appeal was dismissed with no orders as to costs.

Key legal issues

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01

Whether the value of the subject matter was ascertainable for purposes of taxation

Holding

The value ascertainable from the pleadings related only to the party and party costs in the magistrate's court; the costs before the High Court arose from the appeal against striking out of the defence, whose subject matter was not ascertainable.

Reasoning

Although the liquidated claim of Kshs. 458,887 appeared in the pleadings, the High Court bill of costs arose from the appeal against the order striking out the defence, which was dismissed. The case never went to full hearing, so the subject matter of the High Court appeal was the striking out of the defence, which was not ascertainable from pleadings, judgment or settlement, leaving the taxing master's discretion properly engaged.

p. 4
02

Whether the two courts below fell into error in assessing the party and party bill of costs

Holding

No error of principle was established; the taxing master gave reasons for applying the 2009 and 2014 ARO and the discretion applied cannot be faulted.

Reasoning

Matters of quantum of taxation are purely within the province, competence and judicial discretion of the taxing officer. Interference is warranted only on an error of principle or improper exercise of discretion resulting in misjustice. The appellant did not demonstrate such an error; the taxing master gave reasons for applying the 2009 and 2014 ARO, and both the High Court and this Court declined to disturb the award.

p. 4

Legal principles established

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  • A second appellate court is confined to matters of law only, unless the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse.
  • An appellate court will not interfere with the exercise of a taxing officer's discretion unless there was an error of principle or the discretion was improperly exercised resulting in misjustice.
  • Failure to ascertain the correct subject matter or to ascribe the correct value to it in taxation is an error of principle.
  • Where the suit never went to full hearing and the subject matter before the court is not ascertainable, the taxing officer may properly exercise discretion in assessing instruction fees.

Court orders

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  1. 1.Appeal dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 72(1)
  • Advocates Remuneration Order2009
  • Advocates Remuneration Order2014

Cases cited (7)

  • Joreth Ltd vs. Kigano & Associates
    [2002] 1 E.A. 92

    Value of subject matter for taxation is determined from the pleadings, judgment or settlement; if not ascertainable, the taxing officer may use discretion.

  • Kenya Breweries Ltd v. Godfrey Odongo
    Civil Appeal No. 127 of 2007

    A second appellate court ought to confine itself to matters of law only.

  • Stanley N. Muriithi & Another v. Bernard Munene Ithiga
    (2016) eKLR

    Second appellate court confined to matters of law unless the lower courts considered or failed to consider matters, or the decision is perverse.

  • Mbogo & Another vs Shah
    [1968] EA, p.15

    An appellate court will not interfere with the exercise of discretion unless misdirection or clear error resulting in misjustice.

  • Kipkorir, Tito & Kiara Advocates vs Deposit Protection Fund Board
    [2005] eKLR

    On a reference from taxation, the Judge will not normally interfere with the taxing officer's discretion unless the taxing officer erred in principle.

  • Kamunyori & Company Advocates vs. Development Bank of Kenya Limited
    (2015) Civil Appeal 206 of 2006

    Failure to ascertain the correct subject matter or value is an error of principle; a judge will not interfere absent error of principle.

  • Peter Muthoka & another vs Ochieng & 3 others
    [2019] eKLR

    Instruction fees must be pegged on the pleadings, judgment or settlement; the taxing officer's discretion applies only where the value is not discernible.

On appeal from
High Court of Kenya at Nyeri
Civil Appeal No. 136 of 2012
Jurisdiction invoked
Section 72(1) Civil Procedure Act - second appeal on matters of law only

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, "Kuria v Kiru Tea Factory Co. Ltd", Case Analysis (2022). Civil Appeal 69 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/832/eng@2022-07-29

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