Republic v Chief Magistrate’s Court at Busia & 2 others [2018] KEELC 1593 (KLR)
The bottom line
#Kenya's High Court upheld a Kshs.100,000 fee award and confirmed that taxed costs can be enforced with a certificate of costs, without extracting a decree.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of the Kshs.100,000 instruction fee award
The award was lawful and within the taxing officer's discretion under Schedule VI paragraph J of the 2009 Advocates Remuneration Order, which prescribes a minimum, not a fixed, sum
Schedule VI paragraph J provides for 'such sum as may be reasonable but not less than 28,000/=' for prerogative order applications. The applicant's counsel misread this as fixing the fee at 28,000. The matter was reasonably complex — technical objections, amendment of pleadings, substitution of a deceased exparte applicant — and the taxing officer's discretion to increase guideline amounts is expressly conferred by the Order. Given 2018 economic realities and the complexity, 100,000 was a decent, lawful award.
Whether the taxing officer failed to give reasons after the notice of objection
The taxing officer complied by directing the objector to the reasons contained in her short taxation ruling; brevity does not amount to non-compliance
When reasons were requested, the taxing officer communicated by letter pointing out that her earlier ruling contained her reasons. From a legal and procedural perspective this was compliance: she responded to the request and indicated where the reasons could be found. Any reservations about brevity do not convert the ruling into non-reasons. The court accepted these as her reasons.
Standard of review of taxation on quantum
Quantum decisions of the taxing officer are final save where an error of principle is demonstrated; disputes over items not raised before the taxing officer are unacceptable on reference
Taxation is an exercise of discretion and opinion, not a mathematical exercise. On escalation to the judge, counsel should focus on principle, not amount. Applying White v Altrincham Urban District Council, the court will not interfere unless the taxing master is shown to have gone wholly wrong. Many disputed items here had not been raised before the taxing officer or were submitted on differently at that stage.
Whether a decree must precede taxation and execution of party and party costs
No. Order 21 rule 8(2) uses the optional 'MAY'; Order 21 rule 9 contemplates cases without a decree and makes a certificate of costs the mandatory document; execution on a certificate of costs was proper
A combined reading of Order 21 rules 8 and 9 shows extraction of a decree is not mandatory. Rule 9(2) requires costs, where not stated in a decree, to be stated 'in a separate certificate to be signed by a taxing officer'. The authorities cited by the applicant on the necessity of a decree were said to concern advocate/client bills and did not reflect the true legal position on party and party costs. The second application was therefore premised on an erroneous legal footing.
Legal principles established
#- Paragraph J of Schedule VI of the Advocates Remuneration Order 2009 (prerogative orders) permits the taxing officer to award any reasonable sum not less than Kshs.28,000; the minimum figure is a floor, not the award
- A judge on a reference will not interfere with the taxing officer's quantum awards unless the taxing officer is shown to have erred in principle
- Issues not raised before the taxing officer cannot be raised for the first time on a reference to the judge
- Under Order 21 rules 8 and 9 of the Civil Procedure Rules, extraction of a decree is optional; the mandatory document for stating taxed costs is a separate certificate of costs signed by the taxing officer
- The leave stage of judicial review proceedings is a preliminary stage of the same proceedings, not a separate stage, so costs relating to documents introduced at the leave stage are properly included in one bill of costs
Court orders
#- 1.The first application (summons in chambers/reference dated 12/9/2017 under paragraph 11(2) of the Advocates (Remuneration) Order) is dismissed with costs
- 2.The second application dated 19/9/2017 seeking to set aside execution proceedings and recall warrants of attachment and sale is dismissed with costs
- Jurisdiction invoked
- Inherent jurisdiction under Sections 3 and 3A of the Civil Procedure Act (cap 21) and paragraph 11(2) of the Advocates (Remuneration) Order, in a judicial review matter; court also invoked the Constitution of Kenya, 2010 and the Environment and Land Court Act to overcome procedural constraints
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Chief Magistrate’s Court at Busia & 2 others [2018] KEELC 1593 (KLR)", Case Analysis (2018). Not stated in the judgment (ruling on two applications dated 12/9/2017 and 19/9/2017 in a concluded judicial review matter). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1593/eng@2018-10-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.