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Court of AppealDismissedNot stated in the judgment (reference filed by letter dated December 22, 2020)· [2023] KECA 311 (KLR)

Misnak International (UK) Limited v 4MB Mining Limited c/o Ministry Of Mining, Juba Republic Of South Sudan & 3 others (Civil Appeal (Application) 118 of 2018) [2023] KECA 311 (KLR)

Court of Appeal of Kenya
17 March 2023
3,005 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that a taxing officer may award modest instruction fees even where huge sums are in dispute, because case value is not the only factor.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa, delivered by P. Nyamweya JA on 17 March 2023, on a reference brought by Minsak International (UK) Limited against a taxation ruling of the Deputy Registrar (Hon. H. Adika) dated 17 December 2020. The background is that the appellant succeeded in an interlocutory appeal decided on 25 July 2019, in which the High Court's ruling was set aside and the appellant's preliminary objection on jurisdiction upheld, with costs to the appellant. The appellant then taxed a party and party bill of costs of Kshs 40,003,000, but the Taxing Officer awarded only Kshs 1,033,740, including Kshs 1,000,000 as instruction fees. The appellant contended that the Taxing Officer erred in principle by failing to ascertain the subject matter's value (pleaded at USD 8,134,705.17), by failing to weigh the nature, importance and interest of the appeal under paragraph 9(2) of the Third Schedule, and by taking irrelevant factors into account. The court rejected these arguments. It held that although the value of the subject matter is a relevant consideration, it is not the only parameter, and the Taxing Officer properly considered that the appeal turned on a jurisdictional issue under Order 5 of the Civil Procedure Rules which was not complex and was not decided on the merits. The court further held that the authorities relied on concerned advocate/client bills in the High Court and were inapplicable, that the Governors Balloons and Charter House decisions were of no relevance, and that the Alcon International Case was never cited in the impugned ruling. The reference was dismissed with costs to the 1st Respondent.

Key legal issues

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01

Whether failure to ascertain the value of the subject matter in taxing instruction fees on a party and party bill of costs on appeal is an error of principle

Holding

No. The Taxing Officer did consider the value of the subject matter as pleaded, but was entitled to discount it because the value is not the only parameter; the discretion exercised was judicious and consistent with Rules 111, 112 and paragraphs 9, 11 and 12 of the Third Schedule.

Reasoning

The court noted that the taxing officer considered various factors, including that the matter was not decided on merit and that the issue before the Court was jurisdiction under Order 5 of the Civil Procedure Rules, which was not very complex. The overriding discretion under paragraph 12 permits deductions or additions to render the bill reasonable. Authorities relied on by the appellant concerned advocate/client bills in the High Court and were inapplicable.

p. 5
02

Applicability of authorities on advocate/client taxation and High Court taxation to a party and party bill of costs on appeal

Holding

The reported decisions relied on by both counsel were not applicable, as they clarified principles applicable to advocate/client bills of costs in the High Court, whereas this reference concerns a party and party bill of costs to which different principles apply.

Reasoning

The court examined each authority: Kamunyori, Joreth, Lucy Waithira, Peter Muthoka and Muchiri W'Njunguna concerned advocate/client bills in the High Court; Governors Balloons concerned a stay application; Charter House did not involve taxation or addressed extension of time under Rule 112(3); and the Alcon International Case was never cited or relied on by the Taxing Officer in the impugned ruling.

p. 5
03

Whether the Taxing Officer was precluded from being guided by foreign or other precedent such as the Alcon International Case

Holding

The Alcon International Case was not cited in the impugned ruling, and in any event the Taxing Officer was not precluded from being guided by similar judicial precedent.

Reasoning

The appellant contended the Taxing Officer aligned himself with the Alcon International decision, but the respondent demonstrated that the ruling never cited it. The court agreed, holding that a taxing officer may be guided by comparable precedent even if not binding.

p. 5

Legal principles established

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  • In taxing a party and party bill of costs on appeal, the taxing officer must exercise discretion judiciously having regard to the amount involved in the appeal, its nature, importance and difficulty, the interest of the parties, and all other relevant circumstances under paragraph 9(2) of the Third Schedule of the Court of Appeal Rules; the value of the subject matter is one consideration among several, not the only parameter.
  • A reference on taxation of a party and party bill of costs in the Court of Appeal is governed by different principles from those applicable to an advocate/client bill of costs in the High Court, and decisions on the latter are not directly applicable.

Court orders

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  1. 1.The reference filed by way of the letter dated December 22, 2020 is dismissed
  2. 2.Costs of the reference awarded to the 1st Respondent

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 111
  • Court of Appeal Rules, 2010Rule 112
  • Court of Appeal Rules, 2010Third Schedule, Paragraphs 9(1), 9(2), 11 and 12
  • Court of Appeal Rules, 2022Rules 116 and 117
  • Civil Procedure Rules, 2010Order 5

Cases cited (8)

  • Alcon International Limited v Standard Chartered Bank of Uganda & 2 others
    Reference No. 1 of 2014
  • Kamunyori & Company Advocates v Development Bank Of Kenya Limited
    [2015] eKLR
  • Joreth Ltd v Kigano and Associates
    (2002) 1 EA 92
  • Governors Balloons Safaris Limited v Skyship Company Limited & another
    [2015] eKLR
  • Lucy Waithira & 2 Other v Edwin Njagi T/A E. K. Njagi & Company Advocates
    [2017] eKLR
  • R v Ministry of Agriculture & 2 others Ex parte Muchiri W'Njunguna & 6 others
    [2006] eKLR
  • Charter House Investment limited v Simon K. Sang & 3 others
    [2012] eKLR
  • Peter Muthoka & Another v Ochieng & 3 others
    [2019] eKLR
On appeal from
Taxing Officer, Deputy Registrar, Court of Appeal (Hon. H. Adika)
Party and Party Bill of Costs dated July 9, 2020
Jurisdiction invoked
Rule 112 of the Court of Appeal Rules, 2010 - reference from a taxing officer's decision on a matter of law or principle, or where a bill as taxed is manifestly excessive or manifestly inadequate

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, "Misnak International (UK) Limited v 4MB Mining Limited c/o Ministry Of Mining, Juba Republic Of South Sudan & 3 others (Civil Appeal (Application) 118 of 2018) [2023] KECA 311 (KLR)", Case Analysis (2023). Not stated in the judgment (reference filed by letter dated December 22, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/311/eng@2023-03-17

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