Bethsaida Resort & Spa Limited v Gauderlot (Civil Appeal 60 of 2020) [2023] KECA 628 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that lawyers' fees on property disputes are calculated from the full purchase price in the pleadings, not just the deposit claimed.
What this practically means
#Executive summary
#Key legal issues
#Whether the value of the subject matter for taxation should be the amount sued for (deposit of Kshs 4,500,000.00) or the pleaded purchase price of the properties (Kshs 45,000,000.00)
The value of the subject matter is taken from the pleadings; since the amended plaint disclosed the purchase agreement over the properties at Kshs 45,000,000.00, the refund of the deposit was only one aspect of the suit and the taxing officer and judge correctly adopted the pleaded value.
The court examined the amended plaint, which pleaded a sale agreement over the properties including the hotel business at a purchase price of Kshs 45,000,000.00, of which Kshs 4,500,000.00 was a deposit. The relief sought - declarations of voidness and frustration plus refund of the deposit - arose from that whole transaction. Applying Joreth Ltd v Kigano & Associates, value is ascertained from the pleadings. Discerning no error of principle, the court declined to interfere with the exercise of discretion.
The limits of appellate interference with a taxing officer's or judge's discretion on costs
Interference is warranted only where the discretion was exercised capriciously, on an error of principle, or where the award is so excessive or low as to amount to an injustice.
The court traced the settled principles from Arthur v Nyeri Electricity Undertaking and Premchand Raichand through First American Bank v Shah, Kipkorir, Tito & Kiara and Peter Muthoka v Ochieng, confirming that taxation is a matter of opinion based on experience, not a mathematical exercise, and that a discretionary decision may be disturbed only on misdirection or manifest impropriety.
Legal principles established
#- The value of the subject matter of a suit for purposes of taxation of a bill of costs is to be determined from the pleadings, judgment or settlement; where the pleaded subject matter is the sale of property at a stated price, a claim for refund of a deposit is only an aspect of that suit and does not displace the pleaded value.
- Taxation of costs is an exercise of judicial discretion; an appellate court will interfere only on established error of principle, capricious exercise, or an award so excessive or low as to amount to an injustice.
Court orders
#- 1.Appeal dismissed with costs to the respondent
- On appeal from
- Environment and Land Court
- Chamber summons application dated February 20, 2018; ruling of November 21, 2019 delivered by C Yano, J on December 16, 2019
- Jurisdiction invoked
- First appellate jurisdiction over the Environment and Land Court (ruling on a reference from taxation of costs)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bethsaida Resort & Spa Limited v Gauderlot (Civil Appeal 60 of 2020) [2023] KECA 628 (KLR)", Case Analysis (2023). Civil Appeal No 60 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/628/eng@2023-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.