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ELCDismissedChamber Summons dated 22nd October 2015 (arising from Originating Summons dated 29th April 2009)· [2017] KEELC 3142 (KLR)

Mutuku Mutinga & another v Joreth Limited & 2 others [2017] KEELC 3142 (KLR)

High Court of Kenya
17 March 2017
1,105 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court ruled that a taxing officer's ruling itself counts as the required reasons, so challenging taxed costs without showing they are excessive will fail.

What this practically means

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Executive summary

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This was a reference by way of Chamber Summons dated 22nd October 2015 in which the Plaintiffs/Applicants sought to set aside specific items of three party-and-party bills of costs taxed by taxing master I. N. Barasa in a ruling delivered on 9th September 2015, following the dismissal of their Originating Summons dated 29th April 2009 with costs by Lady Justice Mwilu on 22nd November 2013. The applicants complained that although they requested the taxing officer's reasons by letter dated 22nd September 2015, she merely noted that the reasons were contained in the bill of costs, and they sought an order for taxation afresh before a different taxing officer in respect of Items 1 and 125 of the bill dated 20th August 2014, Items 46 and 47 of the bill dated 22nd September 2014 and Items 1 and 2 of the bill dated 6th January 2015. The Defendants/Respondents opposed, contending that the taxing officer's discretion could not be challenged unless exercised unjudicially and that the taxed amounts were not manifestly excessive. The court applied Rule 11 of the Advocates (Remuneration) Order and authorities including Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board and Gathenji & Co. Advocates v Waihenya & 3 Others. Justice Gitumbi held that the taxing officer's ruling itself constituted the reasons for her decision, that the ruling was clear on how the disputed amounts were arrived at, and that there was no allegation the amounts were inordinately high. The application was dismissed with no order as to costs.

Key legal issues

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01

Whether the taxing officer failed to give reasons for her decision under Rule 11 of the Advocates (Remuneration) Order

Holding

The taxing officer's ruling of 9th September 2015 constituted adequate reasons; the handwritten note that the reasons were contained in the bill of costs did not amount to a failure to give reasons

Reasoning

The court accepted that the applicants requested reasons by letter dated 22nd September 2015 and the taxing officer merely noted the reasons were in the bill of costs. However, on perusal of the ruling, the judge found the taxing officer was clear on how she arrived at the disputed amounts. Relying on Gathenji & Co. Advocates, the ruling itself constitutes the reasons. No allegation of manifest excess was made.

p. 3
02

Whether the court should interfere with the taxing officer's discretion

Holding

The court declined to interfere, finding the taxation reasonable absent any allegation that the amounts were inordinately high

Reasoning

The respondents argued the taxing officer exercised a discretion that cannot be challenged unless exercised unjudicially, and that the taxed costs were not manifestly excessive. The judge found the taxing officer's findings reasonable and noted there was no allegation the amounts were inordinately high, so the reference could not succeed.

p. 3

Legal principles established

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  • If a taxing officer totally fails to record and forward reasons to the objector, that is a good ground for a reference and the absence of reasons does not preclude a competent reference
  • The 'reasons' of a taxing officer are no more than his ruling on the matter; once the ruling has been made, signed and delivered, there is no need to request separate reasons

Court orders

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  1. 1.The application (Chamber Summons dated 22nd October 2015) is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Advocates (Remuneration) OrderRule 11

Cases cited (2)

  • Kipkorir, Titoo & Kiara Advocates –vs.- Deposit Protection Fund Board
    [2005] 1KLR 528
  • Gathenji & Co. Advocates versus Waihenya & 3 Others
    Nairobi HCCC No. 721 of 2000
On appeal from
Taxing Officer (High Court)
Ruling delivered 9th September 2015 by taxing master I. N. Barasa
Jurisdiction invoked
Rule 11 of the Advocates (Remuneration) Order - reference to a judge against a taxing officer's decision

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mutuku Mutinga & another v Joreth Limited & 2 others [2017] KEELC 3142 (KLR)", Case Analysis (2017). Chamber Summons dated 22nd October 2015 (arising from Originating Summons dated 29th April 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3142/eng@2017-03-17

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