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ELCDismissedELC No. 368 of 2016 (Reference)· [2019] KEELC 3234 (KLR)

David Mining v Rebecca Mining [2019] KEELC 3234 (KLR)

Environment and Land Court
21 May 2019
MOM.A. Odeny
2,427 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling by M.A. Odeny J of the Environment and Land Court at Eldoret determines a reference by the applicant (the successful defendant's advocates' client in the underlying suit, ELC No. 368 of 2016, which was withdrawn by the plaintiff with costs) against a Taxing Officer's decision of 7th December 2018. The Taxing Officer had taxed a Party and Party Bill of Costs dated 22nd June 2018 at Kshs. 132,455 against a presented amount of Kshs. 1,284,615, reducing the instruction fee on Item 1 from the claimed Kshs. 1,254,000 (pegged on a subject matter valued at Kshs. 75,000,000) to Kshs. 100,000, reasoning that the value of the suit land was not disclosed in the pleadings and the suit was withdrawn without judgment or settlement. The applicant sought setting aside of the ruling, fresh taxation by a different Taxing Master, or alternatively taxation by the Judge. The respondent objected that the reference was procedurally defective, having been commenced by notice of motion rather than Chamber Summons under paragraph 11(2) of the Advocates (Remuneration) Order, and without recorded reasons. Citing authorities including KTK Advocates v Baringo County Government and Joreth Limited v Kigano & Associates, the applicant argued the Taxing Officer ought to have ascertained the value of the subject matter, including from a succession cause. The court held that a judge does not ordinarily interfere with a Taxing Officer's assessment absent a wrong principle, that the value of the subject matter was not ascertainable from the pleadings, and that the claimed fee was unconscionable given the early withdrawal of a simple, unprotracted suit. The reference was dismissed with costs to the respondent.

Key legal issues

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01

Whether the court should interfere with the Taxing Officer's award on the instruction fee

Holding

The court declined to interfere; the Taxing Officer applied no wrong principle and the claimed fee of Kshs. 1,254,000 was unconscionable given that the suit was withdrawn early and was neither complex nor protracted

Reasoning

The court restated the settled principle that questions of quantum of costs are matters for the Taxing Officer, who has more experience, and interference lies only where a wrong principle is applied or the award is manifestly excessive or low. The value of the subject matter was not disclosed in the pleadings, there was no judgment or settlement, and there was no valuation report. The succession cause pleadings relied on by the applicant were not part of the suit. The matter was withdrawn before much work was done.

p. 3
02

Procedural correctness of the reference brought by notice of motion

Holding

The reference ought to have been brought by Chamber Summons under paragraph 11(2) of the Advocates (Remuneration) Order; the use of a notice of motion was a procedural defect

Reasoning

The respondent objected that paragraph 11(2) of the Advocates Remuneration Order requires objections to a Taxing Officer's decision to be commenced by Chamber Summons and that the applicant did not obtain recorded reasons before filing. The court noted the application should have been brought by Chamber Summons but determined the matter on the merits, dismissing it as lacking merit.

p. 4

Legal principles established

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  • A judge will not ordinarily interfere with a Taxing Officer's assessment of fees unless satisfied that a wrong principle was applied, and where the value of the subject matter is not ascertainable from the pleadings, judgment or settlement, the Taxing Officer has discretion in fixing the instruction fee

Court orders

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  1. 1.The application dated 14th December 2018 is dismissed
  2. 2.Costs of the application to the respondent

Authorities

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Legislation

  • Advocates (Remuneration) OrderParagraph 11, including paragraph 11(2)
  • Advocates (Remuneration) OrderParagraph 13A

Cases cited (5)

  • KTK Advocates v Baringo County Government
    [2017] eKLR, Nairobi Misc. Cause No. 1 of 2017
  • Bank of Uganda vs. Banco Arabe Espanol
    SC Civil Application No. 23 of 1999
  • Republic Vs. Ministry of Agriculture & 2 Others Ex-Parte Muchiri W'njuguna & 6 Others
    [2006] eKLR
  • Mwangangi & Company Advocates v Machakos County
    [2018] eKLR, Misc. Civil Application No. 318 of 2016
  • Joreth Limited Vs. Kigano & Associates
    [2002] eKLR
On appeal from
Environment and Land Court at Eldoret (Taxing Officer/Deputy Registrar)
ELC No. 368 of 2016
Jurisdiction invoked
Paragraph 11 of the Advocates (Remuneration) Order (reference against a Taxing Officer's decision)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "David Mining v Rebecca Mining [2019] KEELC 3234 (KLR)", Case Analysis (2019). ELC No. 368 of 2016 (Reference). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3234/eng@2019-05-21

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