Tarlocham Singh Rai (deceased) & 2 others v Jasbir Singh Rai & 3 others
The bottom line
#Kenya's Court of Appeal confirmed that affidavits cannot be used to value a lawsuit for legal fee calculations, ending a decade-long family fee dispute.
What this practically means
#Executive summary
#Key legal issues
#Whether affidavits are pleadings for purposes of ascertaining the value of the subject matter in taxation
Affidavits are evidence, not pleadings; the value of the subject matter could not be determined from them.
The taxing officer applied section 2 of the Civil Procedure Act, which does not include affidavits in the definition of pleading. This Court endorsed Eastland Hotel v Wafula Simiyu and Joreth Ltd v Kigano. The affidavits deposing values in excess of Kshs. 4 billion were not captured in the pleadings and had not been tested by cross-examination since the suit was struck out in limine; they remained mere allegations.
Whether the learned judge properly declined to interfere with the taxing master's award of instruction fees
The taxing master correctly exercised her discretion by enhancing instruction fees to Kshs. 5,000,000.00 based on the nature, complexity and importance of the matter where value was not ascertainable.
Applying the NGO Coordination Board criteria and Mbogo v Shah, the Court found no error of principle. Three different taxing masters consistently held the value could not be determined from the pleadings. The award was consistent with the previous references directing the taxing officer to consider the complexity of the cause and the value of the subject matter.
Whether the court could award interest on costs under section 26 of the Civil Procedure Act
No; the issue was introduced equivocally and the Court had no jurisdiction to address it in a taxation matter in that manner.
The appellants had 'sneaked in' an interest claim in submissions without it being part of the taxation proceedings or the dismissed appeal's orders. Parties dissatisfied with such pronouncements must approach the appropriate forum. The Court declined to entertain it.
Whether the learned judge failed to consider the appellants' written submissions
The ground failed; the learned judge expressly took the submissions into account at paragraph 17 of her ruling.
The Court found, contrary to the ground of appeal, that the judge ably considered the written submissions, so this ground could not sustain the appeal.
Legal principles established
#- An affidavit is not a pleading but evidence; affidavits cannot be used to determine the value of the subject matter for taxation of instruction fees.
- Rules cannot supersede a statute; the Civil Procedure Act's definition of pleading prevails over the Companies (Winding Up) Rules.
- An appellate court will not interfere with the exercise of discretion by an inferior court unless satisfied the decision is clearly wrong or based on a misdirection.
- Where the value of the subject matter is not ascertainable from the pleadings, judgment or settlement, the taxing officer may exercise discretion to assess instruction fees based on the nature, importance, and conduct of the matter.
- Evidence in affidavits that has not been subjected to challenge remains mere allegations and cannot found a determination of value.
Court orders
#- 1.The appeal is dismissed
- 2.The appellants to pay costs of the appeal to the respondents
- On appeal from
- High Court of Kenya
- Reference by Summons in Chambers dated 23rd June 2016 (challenging taxing master's ruling of 6th June 2016)
- Jurisdiction invoked
- First appellate jurisdiction over an appeal from the High Court on a reference against a taxing master's decision (advocates' costs taxation)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tarlocham Singh Rai (deceased) & 2 others v Jasbir Singh Rai & 3 others", Case Analysis (2024). Court of Appeal appeal against the ruling of Olga Sewe, J. delivered 7th September 2017 in the reference by Summons in Chambers dated 23rd June 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1024/eng@2024-08-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.