Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCourt 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· [2024] KECA 1024 (KLR)

Tarlocham Singh Rai (deceased) & 2 others v Jasbir Singh Rai & 3 others

Court of Appeal of Kenya
2 August 2024
3,577 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

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

#
This is a unanimous Court of Appeal judgment dismissing an appeal against a High Court ruling by Olga Sewe, J. dated 7th September 2017, which had dismissed the appellants' reference against a taxing master's decision of 6th June 2016. The dispute is a long-running family litigation over Rai Ply Woods (Kenya) Limited, in which a 2002 Court of Appeal judgment stayed further court proceedings pending arbitration and struck out the winding-up petition. The appellants then pursued taxation of a joint party-and-party bill of costs initially claimed at Kshs. 163,973,520.00. Three different taxing masters successively determined that the value of the subject matter could not be ascertained from the pleadings, the last awarding instruction fees of Kshs. 7,293,904.00 (having enhanced instruction fees to Kshs. 5,000,000.00 under Schedule VI(1)(f)(i) of the Advocates (Remuneration) (Amendment) Order 1997). The central holdings bind lower courts on two points: first, an affidavit is not a pleading but evidence, so untested depositions cannot establish the value of the subject matter for taxation; second, subsidiary rules cannot override the Civil Procedure Act's definition of 'pleading'. The Court applied Mbogo v Shah and the NGO Coordination Board criteria, finding no error of principle warranting appellate interference with discretion. It also declined to entertain a claim for interest on costs under section 26 of the Civil Procedure Act, holding it had no jurisdiction to address the issue as introduced. The appeal was dismissed with costs to the respondents.

Key legal issues

#
01

Whether affidavits are pleadings for purposes of ascertaining the value of the subject matter in taxation

Holding

Affidavits are evidence, not pleadings; the value of the subject matter could not be determined from them.

Reasoning

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.

p. 6
02

Whether the learned judge properly declined to interfere with the taxing master's award of instruction fees

Holding

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.

Reasoning

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.

p. 6
03

Whether the court could award interest on costs under section 26 of the Civil Procedure Act

Holding

No; the issue was introduced equivocally and the Court had no jurisdiction to address it in a taxation matter in that manner.

Reasoning

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.

p. 7
04

Whether the learned judge failed to consider the appellants' written submissions

Holding

The ground failed; the learned judge expressly took the submissions into account at paragraph 17 of her ruling.

Reasoning

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.

p. 5

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. 1.The appeal is dismissed
  2. 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.