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ELCDismissedChamber Summons application dated 10th May 2016· [2017] KEELC 3424 (KLR)

Arif Bayusuf v Lucy Tofani [2017] KEELC 3424 (KLR)

High Court of Kenya
17 March 2017
2,590 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 upheld a taxing officer's Kshs 100,000 instruction fee, confirming courts rarely interfere with taxation decisions unless the award causes real injustice.

What this practically means

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Executive summary

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This was a reference by chamber summons dated 10th May 2016 under Order 11 of the Advocates (Remuneration) Order, challenging the ruling of Deputy Registrar Jaenette Wandia delivered on 29th March 2016, in which the instruction fee on Item 2 of the Plaintiff's Party and Party Bill of Costs was taxed down from the Kshs 3,000,000 sought to Kshs 100,000. Prayers 1 and 2 (enlargement of time and deeming of filing) were allowed by consent before Justice Angote, leaving for determination whether the taxing officer's decision was based on settled principles and whether the court could grant the remaining prayers. The court applied the four principles in Premchand Raichand v Quarry Services and the interference criteria in First American Bank of Kenya v Shah. It found that the value of the subject land (5.9 hectares in Lamu) never emerged at trial - only a Kshs 400,000 purchase price and Kshs 42,000 annual rent were evident - so the taxing officer properly began with the Schedule 6(1) minimum of Kshs 6,300 before exercising discretion to enhance the fee to Kshs 100,000. The claims of complexity failed: travel costs from Nairobi to Malindi are compensated elsewhere in the Bill, and prior litigation between the same parties over the subject matter would have reduced research. Holding that questions of quantum are for taxing officers and interference is reserved for exceptional circumstances, the court dismissed the application, with each party bearing their own costs.

Key legal issues

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01

Whether the taxing officer's award of Kshs 100,000 instruction fee was based on settled principles and thus open to interference

Holding

The decision was proper: the taxing officer first established the minimum chargeable fee under Schedule 6(1) then exercised discretion to enhance it, and the value of the land was never established at trial

Reasoning

The court reviewed the taxing officer's ruling and the proceedings. The value of the subject land never arose at trial; only Kshs 400,000 paid for the land and Kshs 42,000 annual rent were evident. The taxing officer properly established the Schedule 6(1) minimum of Kshs 6,300 before exercising discretion to enhance to Kshs 100,000. Setting out the basic fee before increasing it is a settled principle, and no error of principle was shown.

p. 4
02

Whether the court could adjust the figure and re-assess the fees due as prayed

Holding

No - questions of quantum are for taxing officers and interference is reserved for exceptional circumstances; the claim of complexity also failed since travel costs are compensated elsewhere and prior litigation between the parties reduced research needed

Reasoning

Applying First American Bank of Kenya v Shah, interference requires an error of principle or a manifestly excessive/low award. The Applicant claimed the matter was complex, but the travel from Nairobi to Malindi is compensated elsewhere in the Bill, and the parties had already litigated two other cases over the subject matter, reducing the research required. No exceptional circumstances were shown.

p. 4

Legal principles established

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  • A court will only interfere with a taxing officer's award where it is so high or so low as to amount to an injustice, not merely because it appears somewhat too high or too low
  • The full instruction fees to defend a suit are earned the moment a defence is filed and the subsequent progress of the matter is irrelevant to that item

Court orders

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  1. 1.The Application dated 10th May 2016 is hereby dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Advocates (Remuneration) OrderOrder 11
  • Advocates (Remuneration) Order 2009Schedule 6(1)

Cases cited (5)

  • Premchand Raichand Ltd & Another vs Quarry Services of East Africa Ltd & Others
    (1972) EA 162
  • Joreth Limited vs Kigano & Another
    (2002) EA 92
  • Republic vs Ministry of Agriculture & 2 Others Ex-Parte Muchiri W Njuguna & 6 others
    (2006) eKLR
  • First American Bank of Kenya vs Shah and Others
    (2002) 1 EA 64
  • Paul Ssemogerere & Another vs Attorney General, SCCA No. 5 of 2001
On appeal from
Deputy Registrar (Taxing Officer) - Hon. Jaenette Wandia
Jurisdiction invoked
Order 11 of the Advocates (Remuneration) Order and all enabling provisions of the law

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, "Arif Bayusuf v Lucy Tofani [2017] KEELC 3424 (KLR)", Case Analysis (2017). Chamber Summons application dated 10th May 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3424/eng@2017-03-17

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