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ELCAllowedChamber Summons dated 18th April 2017 (reference against Deputy Registrar's ruling of 21st March 2017 on the bill of costs dated 6th September 2016)· [2017] KEELC 3871 (KLR)

Dhokia v Bank of Baroda (Kenya) Ltd (Environment & Land Case 265 of 2014) [2017] KEELC 3871 (KLR)

Environment and Land Court
8 November 2017
SKS.M. Kibunja
1,304 words in judgment
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The bottom line

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A Kenyan court set aside a Ksh.75,000 instruction fee, ruling that taxing officers must consider the suit's value from the pleadings, not demand formal valuations.

What this practically means

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Executive summary

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The Defendant, Bank of Baroda (Kenya) Ltd, brought a chamber summons dated 18th April 2017 seeking to set aside the Deputy Registrar's ruling of 21st March 2017, which taxed item 1 (instruction fee) of its party-to-party bill of costs dated 6th September 2016 at Ksh.75,000/=. The Defendant contended the taxing officer erred in principle by ignoring the complexity of the suit and the value of the subject matter, being facilities totalling about Ksh.150,000,000/- secured on charged property, and that Schedule 6A of the Advocates Remuneration Order 2014 should apply with the fee increased by one half. The Plaintiff opposed, arguing the suit's subject matter was his rights as chargor regarding whether the bank's power of sale had crystallised, which had no monetary value, and that no valuation existed to justify a higher fee. The court framed three issues and held that the pleadings, particularly paragraphs 10 and 11 of the plaint and the supporting affidavit, disclosed the defendant's claim of Ksh.143,590,028.86 as at 29th May 2014, being consolidated facilities secured on charges including Kisumu Municipality/Block 7/433, which the plaintiff's withdrawn suit sought to stop the bank from enforcing by sale. The value was therefore apparent from the pleadings without a valuation, but the matter's complexity, evidenced by the defendant's extensive filings, was not considered by the taxing officer, constituting an error in principle. The reference was allowed: the ruling on item 1 was set aside and taxation of item 1 remitted to the Deputy Registrar afresh, each party bearing its own costs of the reference.

Key legal issues

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01

Whether the pleadings disclose the pecuniary value of the subject matter for purposes of taxing instruction fees

Holding

Yes. Paragraphs 10 and 11 of the plaint and the supporting affidavit disclose the amount claimed by the defendant (Ksh.143,590,028.86) as at 29th May 2014, so the value was apparent without a valuation.

Reasoning

The court examined the plaint and supporting affidavit, finding the statutory notice quantified the debt at Ksh.143,590,028.86, the consolidated facilities secured on charges including Kisumu Municipality/Block 7/433. This was the amount the plaintiff challenged when filing the suit later withdrawn. Since the value was evident in the pleadings, no separate valuation was needed before taxing item 1.

p. 3
02

Whether the Deputy Registrar erred in principle in taxing item 1 instruction fee at Ksh.75,000/= under Schedule 6 of the Advocates Remuneration Order 2014

Holding

Yes. The taxing officer failed to consider the complexity of the matter and the money value of the subject matter, so the ruling on item 1 was set aside and taxation of item 1 remitted for fresh taxation.

Reasoning

The defendant defended an injunction application seeking to restrain exercise of power of sale over charged property, filing memorandum of appearance, defence, grounds of opposition, replying affidavits, list of authorities and submissions. These showed a complex matter whose complexity and the subject matter value the Deputy Registrar appeared not to have considered, amounting to an error in principle justifying interference on reference.

p. 3

Legal principles established

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  • In assessing costs, the taxing master must be guided by the complexity of the suit and the money value of the subject matter, which may be deduced from the pleadings; a valuation of the charged property is not a prerequisite where the value is apparent from the pleadings.

Court orders

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  1. 1.The ruling of 21st March 2017, on item 1 only of the bill of costs dated 6th September 2016, be and is hereby set aside.
  2. 2.The matter be mentioned before the Deputy Registrar for directions on taxing of item 1 of the bill of costs dated 6th September 2016 afresh taking into account the money value of the suit's subject matter as laid out in paragraphs 10 and 11 of the plaint.
  3. 3.Each party bears their own costs in this reference.

Authorities

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Legislation

  • Civil Procedure ActSection 27
  • Advocates Remuneration Order 2014Schedule 6; Schedules 6A and 6B
Jurisdiction invoked
Section 27 of the Civil Procedure Act (jurisdiction over costs); reference against a taxing officer's ruling

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, "Dhokia v Bank of Baroda (Kenya) Ltd (Environment & Land Case 265 of 2014) [2017] KEELC 3871 (KLR)", Case Analysis (2017). Chamber Summons dated 18th April 2017 (reference against Deputy Registrar's ruling of 21st March 2017 on the bill of costs dated 6th September 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3871/eng@2017-11-08

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