Kimani ((Suing as an Administrator of the Estate of Henry Kimani Agonye)) v Gachoka (Civil Appeal (Application) 268 of 2018) [2024] KECA 1735 (KLR)
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
#Key legal issues
#Error of principle in the award of instruction fees
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.
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.
Entitlement to getting up fees on appeal
Getting up fees are not expressly provided for in the Third Schedule before this Court; the taxing officer correctly declined to award them.
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.
Taxation of items 3, 9 and 15 (perusals) and other items
The taxing officer applied paragraph 9(3) and identified the legal provisions relied upon; the respondent failed to show any error of principle.
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.
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.The reference is dismissed
- 2.Costs of the reference awarded to the appellant
- 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.