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ELCPartially AllowedEldoret CMCC No. 201 of 2011 (Reference against taxation ruling of 18.7.2014)· [2016] KEELC 869 (KLR)

Sarah Chelagat Samoei v Musa Kipkering Kosgei & another [2016] KEELC 869 (KLR)

Environment and Land Court (sitting at Eldoret)
29 April 2016
AOAntony Ombwayo
772 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled that an application to transfer a case to it is not a 'suit', so no getting-up fees were payable.

What this practically means

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Executive summary

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The applicant, Sarah Chelagat Samoei, brought a reference against the ruling of the Deputy Registrar of 18.7.2014 taxing the respondents' Bill of Costs at Kshs.45,228/=. The bill arose from a dismissed application to transfer Eldoret CMCC No. 201 of 2011 to the Environment and Land Court. The applicant contended that the Deputy Registrar proceeded on wrong principles by treating the transfer application as a suit, thereby awarding getting-up fees on Item 1 which she said was highly exaggerated and untenable. The respondents defended the taxation, maintaining that the Taxing Master applied the law properly. The court held that an application to transfer a suit from a subordinate court to the Environment and Land Court is not a suit but an ordinary application under section 18(1)(b) of the Civil Procedure Act, 2010, since that section contemplates transfer of an existing suit. The Taxing Officer therefore misdirected herself. The reference was allowed and the Bill of Costs ordered taxed under Schedule VI(o) VII of the Advocates Remuneration Order. The court granted Kshs.10,000/= as instruction fees, disallowed Item 2, allowed Items 3-8 as drawn, sustained the unchallenged finding on Item 9, and ultimately awarded the respondent costs of Kshs.17,895/=. Judgment delivered at Eldoret on 29 April 2016 by Antony Ombwayo J.

Key legal issues

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01

Characterisation of a transfer application as suit or application for taxation purposes

Holding

The transfer application was an ordinary application under section 18(1)(b), not a suit; getting-up fees were therefore not payable

Reasoning

Section 18(1)(b) of the Civil Procedure Act contemplates the transfer of an existing suit; the application itself cannot be a suit. The Taxing Officer therefore misdirected herself in treating the proceedings as a suit and taxing the bill on that basis, including awarding getting-up fees on Item 1. The bill fell to be taxed under Schedule VI(o) VII of the Advocates Remuneration Order as for an application.

p. 3
02

Whether the Taxing Master's findings on individual items should be disturbed

Holding

Item 2 disallowed; Items 3-8 allowed as drawn; Item 9 finding sustained as unchallenged; instruction fees of Kshs.10,000/= granted

Reasoning

Having held the proceedings were an application, the court re-exercised the taxation discretion, considering the nature of the application commenced in the High Court in respect of a subordinate court matter and the work-load involved, and fixed instruction fees at Kshs.10,000/=. The Item 9 finding was unchallenged and therefore sustained.

p. 3

Legal principles established

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  • An application to transfer a suit from a subordinate court to the Environment and Land Court under section 18(1)(b) of the Civil Procedure Act is an ordinary application, not a suit, and costs must be taxed accordingly

Court orders

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  1. 1.The reference is allowed and the Bill of Costs ordered to be taxed under Schedule VI(o) VII of the Advocates Remuneration Order
  2. 2.Kshs.10,000/= awarded as instruction fees taking into account the nature of the application and work-load
  3. 3.Item 2 of the Bill of Costs not allowed
  4. 4.Items No. 3-8 allowed as drawn
  5. 5.The Taxing Master's finding on Item No. 9 sustained
  6. 6.Respondent awarded costs of Kshs.17,895/=

Authorities

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Legislation

  • Civil Procedure ActSection 18(1)(b)
  • Civil Procedure ActSection 3
  • Advocates Remuneration OrderSchedule VI(o) VII
  • Cap. 300 (now repealed)provision on subordinate court jurisdiction over land claims exceeding Kshs.500,000
Jurisdiction invoked
Reference against the Deputy Registrar's decision on taxation under the Advocates Remuneration Order; Civil Procedure Act section 18

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Sarah Chelagat Samoei v Musa Kipkering Kosgei & another [2016] KEELC 869 (KLR)", Case Analysis (2016). Eldoret CMCC No. 201 of 2011 (Reference against taxation ruling of 18.7.2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/869/eng@2016-04-29

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