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 AppealDismissed· [2024] KECA 1735 (KLR)

Kimani ((Suing as an Administrator of the Estate of Henry Kimani Agonye)) v Gachoka (Civil Appeal (Application) 268 of 2018) [2024] KECA 1735 (KLR)

Court of Appeal of Kenya
6 December 2024
1,654 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal upheld a taxing officer's reduced fee award, confirming that references only succeed where an error of principle is proven, not merely because the figure seems low.

What this practically means

#

Executive summary

#
This was a reference under Rule 117(1), (3) & (4) of the Court of Appeal Rules by the respondent against the ruling of the taxing officer dated 19th July 2024 on the appellant's party and party bill of costs dated 22nd January 2024. The respondent, who had succeeded in the appeal below, contended that the taxing officer fell into errors of principle by taxing instruction fees at Kshs. 200,000 instead of the Kshs. 800,000 as drawn, by declining to award getting up fees at a minimum of one-third of the instruction fees, and by failing to award costs on perusal items 3, 9 and 15. The appellant opposed, submitting that a reference lies only on matters of principle and not on quantum alone. F. Ochieng, JA, writing in a single-judge reference decision, framed one issue: whether there was an error of principle in the taxation ruling. The court found that since the value of the subject matter of the appeal was not discernible, the taxing officer was entitled to exercise discretion under paragraph 9(2) of the Third Schedule, and she properly considered the complexity, importance and interest of the parties and explained how those factors impacted her discretion, consistent with Peter Muthoka and Mount Elgon Beach Properties. On getting up fees, the court upheld the taxing officer, noting the Third Schedule does not expressly provide for such fees before this Court and that the respondent's authority concerned fees awarded in the High Court. No error of principle was shown on the perusal items. The reference was dismissed with costs to the appellant.

Key legal issues

#
01

Error of principle in the award of instruction fees

Holding

No error of principle; the taxing officer properly exercised her discretion under paragraph 9(2) of the Third Schedule where the value of the subject matter was not discernible.

Reasoning

The taxing officer considered the complexity of the matter, its importance, the interest of the parties and the general conduct of the proceedings, and explained that no value was attached to the subject matter from the judgment. This accorded with the principles laid down in Peter Muthoka and Mount Elgon Beach Properties, requiring the taxing officer to engage with the proper basis and show how the factors impacted the discretion exercised.

p. 3
02

Entitlement to getting up fees on appeal

Holding

Getting up fees are not expressly provided for in the Third Schedule before this Court; the taxing officer correctly declined to award them.

Reasoning

The taxing officer held that getting up fees are discretionary and awarded in the High Court, being an element of instruction fees. The authority relied upon by the respondent (Lucy Waithira) concerned getting up fees awarded by the High Court, not by the Court of Appeal, and so did not assist the respondent.

p. 4
03

Taxation of items 3, 9 and 15 (perusals) and other items

Holding

The taxing officer applied paragraph 9(3) and identified the legal provisions relied upon; the respondent failed to show any error of principle.

Reasoning

The taxing officer outlined the provisions of law she relied on in taxing drawings, making copies, attendances, service and disbursements. The respondent did not demonstrate that the taxing officer failed to apply the correct principles or applied the wrong principles, so the taxation on those items could not be disturbed on a reference.

p. 4

Legal principles established

#
  • A reference against a taxing officer's ruling may only succeed where an error of principle is demonstrated; the court will not interfere on the basis of quantum alone.
  • Where the value of the subject matter of an appeal is not discernible from the pleadings, judgment or settlement, the taxing officer may exercise discretion to assess instruction fees having regard to the factors in paragraph 9(2) of the Third Schedule, and must show how those factors impacted on the exercise of that discretion.

Court orders

#
  1. 1.The reference is dismissed
  2. 2.Costs of the reference awarded to the appellant

Authorities

#

Legislation

  • Court of Appeal RulesRule 117(1), (3) & (4)
  • Court of Appeal RulesRules 113 and 116
  • Court of Appeal RulesParagraph 9(2) and 9(3) of the Third Schedule
  • Advocates (Remuneration) (Amendment) Order, 2014Schedule 6 para 2

Cases cited (5)

  • Mount Elgon Beach Properties Limited v Mwanongo & Another
    [2023] KECA 277 KLR
  • Lucy Waithira & 2 Others v Edwin Njagi T/A E. K Njagi & Company Advocates
    [2017] eKLR
  • Premchand Raichand Limited & Another v Quarry Services of East Africa Limited & Others (No. 3)
    [1972] E.A 162
  • Thomas James Arthur v Nyeri Electricity
    [1961] E.A
  • Peter Muthoka & Another v Ochieng & 3 Others
    [2019] eKLR
On appeal from
Taxing Officer of the Court of Appeal
Party and party bill of costs dated 22nd January 2024
Jurisdiction invoked
Rule 117(1), (3) & (4) of the Court of Appeal Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kimani ((Suing as an Administrator of the Estate of Henry Kimani Agonye)) v Gachoka (Civil Appeal (Application) 268 of 2018) [2024] KECA 1735 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1735/eng@2024-12-06

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