Arif Bayusuf v Lucy Tofani [2017] KEELC 3424 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the taxing officer's award of Kshs 100,000 instruction fee was based on settled principles and thus open to interference
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
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.
Whether the court could adjust the figure and re-assess the fees due as prayed
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
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.
Legal principles established
#- 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
#- 1.The Application dated 10th May 2016 is hereby dismissed
- 2.Each party to bear their own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.