Sammy Some Kosgei v Grace Jelel Boit [2014] KEELC 353 (KLR)
The bottom line
#An Eldoret court raised a lawyer's fees award after finding the taxing officer wrongly used a figure not found in the pleadings, judgment or settlement.
What this practically means
#Executive summary
#Key legal issues
#Whether proviso (iv) of Schedule VI applied
It did not apply; the suit was one for specific performance of a sale of land, not of a lease
Counsel argued the claim was one for specific performance of two leases, invoking proviso (iv)(a) and (b) which fix value at arrears of rent or mesne profits plus annual rental value or one-tenth of capital value. The court held the proviso is confined to landlord/tenant relationships. This suit concerned a purchaser's claim against a deceased vendor's estate, so proviso (iv) was inoperative.
Whether the taxing master erred in principle by using Kshs. 3 Million as the value of the subject matter
Yes; that figure came from the proceedings (testimony on purchase price), not from the pleadings, judgment or settlement
Rule 1(b) applies where value is determinable from pleadings, judgment or settlement. Here none stated a value; the Kshs. 3 Million was the purchase price deposed to by the plaintiff in testimony. Following Joreth v Kigano, using that figure as the sole measure, as if it appeared in the pleadings or judgment, was an error in principle. The taxing master should instead have exercised discretion under proviso (i), considering all relevant circumstances.
Whether the court should remit or tax the bill itself
The judge taxed the bill himself, fixing instruction fees at Kshs. 270,000/= and getting-up fees at Kshs. 90,000/=
Although Joreth v Kigano suggests remittal upon error in principle, the court noted Spry JA's dictum in Steel Construction that judicial discretion permits a judge to re-tax. Relying on Orion East African and First American Bank, the judge concluded remittal would waste judicial time and saddle parties with costs, and proceeded to tax the bill himself, applying the Premchand Raichand principles.
Legal principles established
#- The value of the subject matter for taxation must be determined from the pleadings, judgment or settlement; if not ascertainable, the taxing officer must fall back on discretion under proviso (i) of Schedule VI and consider all relevant circumstances
- A judge on a reference may, in his discretion and to avoid waste of judicial time, tax a bill himself rather than remit it, where the taxing master erred in principle
- Proviso (iv) of Schedule VI applies only to landlord/tenant matters (possession of premises, arrears of rent, or specific performance of a lease)
Court orders
#- 1.The reference is allowed to the extent that the taxation of instruction fees at Kshs. 107,000/= is disturbed and item 2 is taxed afresh at Kshs. 270,000/=
- 2.Fees for getting up fixed at 1/3rd of instruction fees, taxed at Kshs. 90,000/=
- 3.Costs of the reference awarded to the applicant
- Jurisdiction invoked
- Rule 11(2) of the Advocates (Remuneration) Order of the Advocates Act, CAP 16, Laws of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sammy Some Kosgei v Grace Jelel Boit [2014] KEELC 353 (KLR)", Case Analysis (2014). Not stated in the judgment (arising from E&L suit, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/353/eng@2014-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.