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ELCDismissedMachakos High Court Misc. Civil Application No. 216 of 2015 (Reference)· [2018] KEELC 1356 (KLR)

SG Mbaabu & Co Advocates v Kakenyi & 2 others (Environment and Land Miscellaneous Application 34 of 2017) [2018] KEELC 1356 (KLR)

High Court of Kenya
12 October 2018
OAO.A. Angote
1,283 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed that lawyers' fees are calculated from the value stated in pleadings or settlement, not last-minute valuation reports.

What this practically means

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Executive summary

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The applicant advocate, who had filed an Originating Summons on behalf of the respondents in Machakos ELC No. 79 of 2014 seeking a declaration of entitlement to a portion of L.R. No. 7590/6, claimed instructions fees of Kshs. 30,120,000 based on a property value of Kshs. 2 billion. By consent, the parties filed valuation reports valuing the land at Kshs. 1,335,000,000 and Kshs. 650,220,000 respectively. The Deputy Registrar, taxing the Bill of Costs on 6th March, 2017, declined to rely on the valuation reports, applying Joreth Limited v Kigano & Associates, which holds that the value of the subject matter for taxation must be determined from the pleadings, judgment or settlement. The applicant filed a Chamber Summons seeking to set aside that decision and to have items No. 16 and 48 of the Bill taxed afresh. Angote J framed a single issue: whether the taxing officer erred in not relying on the valuation reports. Relying on Joreth and Safaris Unlimited v Muchanga Investments, the court held that the pleadings did not state the value of the suit land, the consent to obtain valuations did not amount to a settlement, and valuation reports filed merely to guide taxation ought to be discouraged unless the value was specifically pleaded or the valuations settled the matter with finality. The taxing officer was entitled to reject the valuations; the decision of 6th March, 2017 was upheld and the Chamber Summons dismissed with no order as to costs.

Key legal issues

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01

Whether the taxing officer erred in disregarding the parties' valuation reports when taxing instruction fees

Holding

The taxing officer did not err; valuation reports not forming the basis of the suit or a settlement cannot be used to fix the value of the subject matter

Reasoning

The court applied Joreth Limited v Kigano & Associates and Safaris Unlimited v Muchanga Investments, holding that the value of the subject matter must be derived from the pleadings, judgment or settlement. The parties had consented to valuation for the purposes of taxation, but no consent annexed to the application could amount to a settlement. The pleadings did not state the value of the suit land, and valuation reports produced merely to guide taxation ought to be discouraged unless the value was specifically pleaded.

p. 3

Legal principles established

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  • The value of the subject matter of a suit for purposes of taxation of a Bill of Costs ought to be determined from the pleadings, judgment or settlement; if not ascertainable, the taxing officer may use discretion to assess just instruction fees
  • Valuation reports presented during taxation do not form the basis of assessing instruction fees unless the parties agree that they should, or the value is specifically pleaded

Court orders

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  1. 1.The decision of the taxing officer dated 6th March, 2017 is upheld
  2. 2.The Chamber Summons dated 3rd April, 2017 is dismissed with no order as to costs

Authorities

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Cases cited (3)

  • Mbogo and Another vs. Shah
    (1968) E.A 93
  • Joreth Limited vs. Kigano and Associates
    (2002) eKLR
  • Safaris Unlimited (Africa) Limited vs. Muchanga Investments Limited
    (2017) eKLR
Jurisdiction invoked
Chamber Summons seeking to set aside the decision of the Deputy Registrar (taxing officer) - reference against taxation

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "SG Mbaabu & Co Advocates v Kakenyi & 2 others (Environment and Land Miscellaneous Application 34 of 2017) [2018] KEELC 1356 (KLR)", Case Analysis (2018). Machakos High Court Misc. Civil Application No. 216 of 2015 (Reference). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1356/eng@2018-10-12

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