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)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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.
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.
Applicability of authorities on advocate/client taxation and High Court taxation to a party and party bill of costs on appeal
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.
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.
Whether the Taxing Officer was precluded from being guided by foreign or other precedent such as the Alcon International Case
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.
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.
Legal principles established
#- 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
#- 1.The reference filed by way of the letter dated December 22, 2020 is dismissed
- 2.Costs of the reference awarded to the 1st Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.