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Court of AppealDismissedCivil Appeal (Application) 71 of 2013· [2022] KECA 1327 (KLR)

Dewdrops Enterprises Limited v City Council of Nairobi & another

Court of Appeal
2 December 2022
HOHA OmondiKLKI LaibutaPGPM Gachoka
1,913 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it will not overturn a judge's decision on taxed legal costs unless the judge made a clear legal error, not just a different outcome.

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 on a reference to a full court under rule 112(5) of the Court of Appeal Rules, 2010 (now rule 117(6) of the 2022 Rules), seeking to reverse the decision of Warsame, JA dated 5 November 2021. The underlying dispute arose from Civil Appeal No E027 of 2021, dismissed on 6 October 2017 with costs to the 1st and 2nd respondents. Bomco Building Contractors Limited filed a party and party bill of costs including instruction fees of Kshs 750,000 for opposing the appeal; the taxing officer taxed the instruction fee at Kshs 500,000, guided by paragraph 9(2) of the third schedule to the Court of Appeal Rules, for a total of Kshs 506,560. Dewdrops Enterprises' reference against that taxation failed before Warsame, JA, who found no error in the taxing officer's exercise of discretion. The full court (HA Omondi, KI Laibuta and PM Gachoka, JJA) reaffirmed the settled test: a full bench interferes with a single judge's decision on a reference only where the judge considered an irrelevant matter, ignored a relevant one, misapprehended the law or evidence, or was plainly wrong - it is not enough that the full bench would have reached a different result. Finding the single judge applied the correct parameters and the litmus test of reasonability, the court dismissed the reference with costs to the 2nd respondent. The decision affirms the single judge's ruling and the taxation below.

Key legal issues

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01

Threshold for a full court reversing a single judge's decision on a reference from taxation

Holding

The applicant must demonstrate that the single judge disregarded a relevant matter, regarded an irrelevant matter, or acted on a misapprehension of evidence or applicable law; a mere preference for a different result is insufficient.

Reasoning

The court drew on rule 117(1) and (3) of the Court of Appeal Rules and its prior decision in John Koyi Waluke v Moses Masika Wetangula, holding that a single judge exercises the court's discretion on behalf of the whole court. A reference is not an appeal to the full court, though rule 117(6) permits the full bench to vary, discharge or reverse a single judge's decision.

p. 3
02

Whether the single judge judiciously exercised his discretion in upholding the taxation

Holding

Yes - the judge applied the correct parameters, including paragraph 9(2) of the third schedule to the Court of Appeal Rules, and considered no irrelevant or disregarded no relevant matters.

Reasoning

The court found the single judge was alive to the guidelines for a reference under rule 117(3), the litmus test being reasonability. The taxing officer had been guided by paragraph 9(2), which allows a reasonable sum for instruction fees having regard to the amount involved, the nature, importance and difficulty of the appeal, and all other relevant circumstances.

p. 4

Legal principles established

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  • A full bench will only interfere with a single judge's decision on a reference from taxation if the judge took into account an irrelevant matter, failed to take into account a relevant matter, misapprehended the law or evidence, or was plainly wrong; it is not enough that the full bench would have reached a different result.
  • On a reference from taxation, a judge will not interfere with the taxing officer's discretion unless the taxing officer erred in principle in assessing costs.

Court orders

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  1. 1.The reference to the full court is dismissed with costs to the 2nd respondent

Authorities

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Legislation

  • Court of Appeal Rulesrule 112(5)
  • Court of Appeal Rules, 2022rule 117(6)
  • Court of Appeal Rulesrule 117(1) and (3)
  • Court of Appeal Rulesrule 55
  • Court of Appeal Rulesrule 57(1)(b)
  • Court of Appeal Rulesrule 20
  • Court of Appeal Rulespart 5 of the second schedule
  • Court of Appeal Rulesparagraph 9(2) of the third schedule
  • Court of Appeal Rulesparagraph 9(4) of the third schedule
  • Constitution of Kenyaarticle 10
  • Advocates Remuneration Order
  • Fair Administrative Action Act

Cases cited (2)

  • John Koyi Waluke v Moses Masika Wetangula & 2 others
    Civil Appeal (Application) No 307 of 2009 (unreported)

    The full bench may only interfere with a single judge's discretion on a reference if an irrelevant matter was considered, a relevant matter ignored, the law or evidence misapprehended, or the decision plainly wrong.

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

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

On appeal from
Court of Appeal (single judge, Warsame, JA)
HCCA No. 71 of 2013 (Reference on Taxation by Hon. L. Ogombe, Deputy Registrar, dated 24 June 2021)
Jurisdiction invoked
Rule 112(5) of the Court of Appeal Rules, 2010 [now rule 117(6) Court of Appeal Rules, 2022] - reference to a full court from a single judge'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, "Dewdrops Enterprises Limited v City Council of Nairobi & another", Case Analysis (2022). Civil Appeal (Application) 71 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1327/eng@2022-12-02

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