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 AppealAllowedNairobi Court of Appeal Civil Application No. E033 of 2024 (Reference from Nairobi Court of Appeal No. 282 of 2017)

Onyango v Tribe Hotel Limited (Civil Appeal (Application) 282 of 2017) [2024] KECA 1749 (KLR)

Court of Appeal of Kenya
6 December 2024
2,196 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal overturned a Kshs. 400,000 costs award because it was calculated on the wrong case, and ordered fresh taxation by a different taxing officer.

What this practically means

#

Executive summary

#
This is a ruling of a single Judge of Appeal (F. Ochieng, JA) on a reference against the taxing master's ruling of 9th November 2022 by Hon. L.D. Ogombe in Nairobi Court of Appeal No. 282 of 2017, delivered on 6th December 2024. Leave to file the reference had been granted on 5th July 2024. The applicant challenged the award of Kshs. 400,000 as instruction fees and items 6, 12, 19, 23 and 25 of the respondent's party-and-party bill of costs dated 28th June 2022. The appeal concerned had been an interlocutory appeal against a contempt-of-court ruling by Justice Monica Mbaru, in which the applicant's directors were found in contempt; the appeal succeeded and the trial court's orders were set aside. The applicant contended that the taxing officer wrongly valued the instruction fees on the subject matter of the main suit (Kshs. 18,657,924) rather than the non-monetary contempt appeal, and that she misdirected herself in stating the bill was unopposed despite submissions having been filed. The court held that since the appeal was of a non-monetary nature and undefended, the taxing officer ought to have exercised her discretion rather than rely on the main suit's value, constituting an error of principle. Relying on Arthur vs Nyeri Electricity, Kamunyori & Company Advocates, and the Supreme Court's decision in Non-Governmental Organizations Coordination Board, the court set aside the taxation and remitted the bill for fresh taxation by a taxing officer other than Hon. L.D. Ogombe, with the respondent to bear the costs of the reference.

Key legal issues

#
01

Whether the taxing officer committed an error of principle by valuing instruction fees on the subject matter of the main suit rather than the interlocutory contempt appeal

Holding

Yes; the appeal concerned a contempt ruling of non-monetary nature, so basing the award on the main suit's value was an error of principle justifying setting aside the taxation.

Reasoning

The appeal before the Court arose from a contempt-of-court ruling, not the monetary substantive suit pending in the ELRC. Paragraph 9(2) of the Third Schedule requires regard to the amount involved, nature, importance and difficulty of the appeal. Relying on the main suit's value of Kshs. 18,657,924 misidentified the subject matter, constituting an error of principle warranting the Court's interference and fresh taxation before a different taxing officer.

p. 4
02

Whether the taxing officer erred in allowing items 6, 12, 19, 23 and 25 without the number of folios being indicated

Holding

The applicant argued error because folios were not indicated; the court set aside the entire taxation on the instruction-fee error of principle, remitting the whole bill for fresh taxation.

Reasoning

The applicant submitted the respondent did not indicate the number of folios and did not file the certificate mandated by paragraph 3(2)(c) of the Third Schedule. Rather than separately ruling on these items, the court set aside the taxation and remitted the bill for fresh taxation by another taxing officer, thereby encompassing all disputed items.

p. 5

Legal principles established

#
  • A taxing officer who identifies the wrong subject matter of an appeal, or assigns an incorrect value to it, falls into an error of principle that warrants interference on a reference.
  • Where instruction fees in an appeal are based on a non-monetary matter such as contempt, the taxing officer must exercise discretion rather than rely on the amount in the main suit.

Court orders

#
  1. 1.The taxation ruling dated 9th November 2022 is set aside and the Bill of Costs is remitted for taxation afresh
  2. 2.The fresh taxation be conducted by a taxing officer other than Hon. L. D. Ogombe
  3. 3.The respondent shall bear the costs of the reference
On appeal from
Taxing Officer, Court of Appeal, Nairobi (Hon. L.D. Ogombe, DR)
Nairobi Court of Appeal No. 282 of 2017
Jurisdiction invoked
Rules 44, 45 and 117 of the Court of Appeal Rules, the Third Schedule of the Court of Appeal Rules, Section 3 of the Court of Appeal (Organization and Administration) Act, and Article 159(2)(d) of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Onyango v Tribe Hotel Limited (Civil Appeal (Application) 282 of 2017) [2024] KECA 1749 (KLR)", Case Analysis (2024). Nairobi Court of Appeal Civil Application No. E033 of 2024 (Reference from Nairobi Court of Appeal No. 282 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1749/eng@2024-12-06

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