Desnol Investments Limited v Lazarus Okello & 2 others [2019] KEELC 2247 (KLR)
The bottom line
#A Kenyan court struck out a costs challenge filed before the taxing master gave reasons, confirming the procedure must be followed exactly.
What this practically means
#Executive summary
#Key legal issues
#Whether the reference was competent under Rule 11 of the Advocates Remuneration Order
The reference was premature and incompetent because it was filed before the Deputy Registrar responded to the Plaintiff's request for reasons; it was struck out.
The Plaintiff's Counsel wrote on 13th November 2018 requesting reasons for the taxation. Rule 11(1) and (2) requires a party to obtain the taxing master's reasons before filing a reference. The Plaintiff filed the reference on 20th November 2018, before the Deputy Registrar's reply of 23rd November 2018. The court agreed with superior court decisions cited by the 2nd Defendant that such a reference is incompetent and must be struck out.
Value of the subject matter for taxation as between Plaintiff and 2nd Defendant
The correct value is Kshs. 56,000,000 as pleaded by the Plaintiff in the plaint, not the Kshs. 2,129,000 proposed; the taxing master did not err on this aspect.
The Plaintiff pleaded the purchase price of the suit land as Kshs. 56,000,000 in paragraph 5 of the plaint. The lesser figure of Kshs. 2,129,000 appears nowhere in the plaint. Had the Plaintiff succeeded, it would have pegged instruction fees on the higher value, and the 2nd Defendant is entitled to use the same value in its bill of costs. The court found no basis for faulting the taxing master.
Whether the 2nd Defendant was entitled to the contested items given the alleged non-service of summons
The 2nd Defendant had counsel on record since November 2014 and was properly served; the contention of non-service was contradicted by the record.
The Plaintiff claimed the 2nd Defendant was never served with summons and pleadings, yet the 2nd Defendant's counsel filed a notice of appointment on 12th November 2014 and attended court on 8th December 2014. The Plaintiff's own application for substituted service omitted the 2nd Defendant. Once a party enters appearance through counsel, service is effected upon that counsel. The court found the Plaintiff's claim contradictory.
Legal principles established
#- A reference under Rule 11 of the Advocates Remuneration Order filed before the taxing master has provided the reasons for the decision is premature and incompetent and liable to be struck out.
- A judge may only interfere with the taxing master's discretion where the taxing master failed to consider relevant matters or considered irrelevant matters.
Court orders
#- 1.The chamber summons dated and filed on 20th November 2018 is struck out with costs to the 2nd Defendant.
- 2.Costs of the reference to the 2nd Defendant.
- On appeal from
- Deputy Registrar (taxing master)
- 2nd Defendant's bill of costs dated 8th February 2018, taxed 6th November 2018
- Jurisdiction invoked
- Reference against a taxing master's decision under Rule 11 of the Advocates Remuneration Order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Desnol Investments Limited v Lazarus Okello & 2 others [2019] KEELC 2247 (KLR)", Case Analysis (2019). Chamber Summons dated 20th November 2018 (ELC suit arising from plaint dated 28th October 2014, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2247/eng@2019-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.