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ELCPartially AllowedChamber Summons dated 13th February 2019· [2019] KEELC 98 (KLR)

Pearl Beach Hotel Limited & another v Kenneth Stanley Haji & 2 others [2019] KEELC 98 (KLR)

Environment and Land Court
14 November 2019
CYC. K. Yano
1,842 words in judgment
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The bottom line

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Kenya's Environment and Land Court upheld a Kshs.6 million instruction fee but struck out Kshs.2 million in getting up fees because the case settled partway before trial.

What this practically means

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Executive summary

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The Applicants, by Chamber Summons dated 13th February 2019, sought to set aside the Taxing Master's decision of 16th November 2017 on items 1 and 86 (instruction and getting up fees) in the 1st Respondent's party and party Bill of Costs, and to have the items re-taxed. They contended that the Taxing Master failed to apply the scale fee in Schedule VI Rule 1(j) of the Advocates (Remuneration) Order 2014 for constitutional petitions and prerogative orders, and awarded over Kshs.8 million without justification. Counsel for the Applicants, relying on Emanga NeSemata Investments Limited, argued the petition was pure public law litigation attracting a maximum of Kshs.100,000. The Respondent, relying on Republic v Law Society Disciplinary Tribunal and J. Thongoria Co. Advocates v UBA Kenya Bank Limited, maintained the petition involved private law interests in land use valued at Kshs.184.5 million and that the Taxing Master's discretion was properly exercised. The court held that a taxing officer's decision may only be disturbed on an error of principle or where the fee is manifestly excessive. It found the instruction fee of Kshs.6,000,000.00 properly assessed given the value of the subject matter and the work done, and declined to interfere. However, it set aside the getting up fees of Kshs.2,000,000.00 because the dispute had been partially resolved by consent before trial. The Chamber Summons was dismissed on item 1, allowed on item 86, with costs to the Respondent.

Key legal issues

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01

Whether the Taxing Master erred in awarding instruction fees of Kshs.6,000,000.00 under Schedule 6 paragraph 1(j) of the Advocates (Remuneration) Order 2014

Holding

No error of principle; the fee was neither based on an error of principle nor manifestly excessive

Reasoning

The Taxing Master applied the correct schedule, exercised her discretion by considering the nature and importance of the petition, the value of the subject matter (Kshs.185,000,000.00 derived from the building contract), the bulk of the file, the burden on counsel, and the principle that fees should not impede access to justice. She gave reasons for taxing off Kshs.4,950,000.00 from the claimed Kshs.10,950,000.00, so the court declined to interfere with item 1.

p. 2
02

Whether the award of getting up fees of Kshs.2,000,000.00 under item 86 was justified

Holding

The award was based on an error of principle and was set aside

Reasoning

The dispute had been partially resolved by consent, as recorded in the judgment, before trial. Any preparation of the case for trial must have been minimised by that partial resolution, so the work undertaken did not entitle the advocate to getting up fees. The court therefore interfered with item 86 while upholding item 1.

p. 2

Legal principles established

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  • A court cannot interfere with a Taxing Officer's decision unless the decision was based on an error of principle or the fee awarded was manifestly excessive
  • Getting up fees are not payable where the dispute was partially resolved by consent before trial, since preparation for trial would have been minimised

Court orders

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  1. 1.Dismissed the Chamber Summons dated 13th February 2019 with regard to item 1 on instructions fees
  2. 2.Allowed the application in respect of item 86 on getting up fees, which was set aside
  3. 3.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Advocates (Remuneration) Order 2014Schedule VI Rule 1(j)

Cases cited (5)

  • Emanga NeSemata Investments Limited –v- Attorney General & 4 Others
    (2013)eKLR
  • Republic –v- Law Society Disciplinary Tribunal
    (2019)eKLR
  • J. Thongoria Co. Advocates –v- UBA Kenya Bank Limited
    (2018)eKLR
  • Premchand Raichand Ltd –v- Quarry Services of East Africa Ltd
    (1972) EA 162
  • Famy Care Limited –v- Public Procurement Administrative Board and Others
    (2014)eKLR
Jurisdiction invoked
Inherent jurisdiction to review a Taxing Master's decision under the Advocates (Remuneration) Order 2014, Schedule 6 paragraph 1(j)

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, "Pearl Beach Hotel Limited & another v Kenneth Stanley Haji & 2 others [2019] KEELC 98 (KLR)", Case Analysis (2019). Chamber Summons dated 13th February 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/98/eng@2019-11-14

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