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ELCPartially AllowedReference by Chamber Summons dated 13/2/2019 (suit judgment delivered 3/10/2016 by Gacheru J)· [2020] KEELC 2016 (KLR)

Scholar Wambui Wainaina v Ndoho Market Stalls Limited [2020] KEELC 2016 (KLR)

High Court of Kenya
10 June 2020
2,501 words in judgment
View original judgmentRead on Kenya Law Watch case
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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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Following a judgment by Gacheru J on 3/10/2016 awarding the plaintiff costs, the taxing officer on 25/9/2018 taxed the plaintiff's party and party bill of costs dated 23/9/2017 at Kshs 425,030, including instruction fees of Kshs 255,000 and getting up fees of Kshs 85,000. The defendant filed a reference by chamber summons dated 13/2/2019 seeking to set aside that decision, contending that the taxing officer applied the wrong schedule, treated the purchase price of Kshs 4,650,000 as the value of the subject matter when it was not, and arbitrarily increased scale fees by Kshs 62,000 without legal basis. The plaintiff opposed, arguing the reference was out of time and without merit, and that the taxing officer properly ascertained the value from the sale agreement and properly exercised her discretion. Eboso J declined to entertain the competence objection because it was raised for the first time in submissions without giving the applicant an opportunity to respond. On the merits, the court held that pleadings in an originating summons include the supporting affidavit, so the value of the subject matter was ascertainable and paragraph 1(b) of Schedule VI was correctly applied. However, the taxing officer erred in principle by relying on the time elapsed since the sale agreement to increase instruction fees, since costs are not general damages. The reference partially succeeded: instruction fees were reduced to Kshs 193,000 and getting up fees to Kshs 64,333; the rest of the taxation stood; the certificate of costs was recalled; and each party bore their own costs of the reference.

Key legal issues

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01

Whether the taxing officer used the wrong schedule in taxing the bill of costs

Holding

The taxing officer correctly used paragraph 1(b) of Schedule VI because the value of the subject matter was ascertainable from the pleadings

Reasoning

The suit was an originating summons seeking specific performance of a land sale contract. Pleadings include the originating summons and the supporting affidavit, to which the sale agreement showing the purchase price of Kshs 4,650,000 was annexed. The subject matter was the apartment whose value was the agreed purchase price, so paragraph 1(b) of Schedule VI, not paragraph 1(j), applied.

p. 2
02

Whether the taxing officer erred in principle in increasing instruction fees by Kshs 62,000

Holding

Yes; the taxing officer relied on an irrelevant factor, namely the time passed since the parties entered the sale agreement

Reasoning

In a party and party bill of costs, the purpose of an award of costs is to reasonably reimburse the successful party for costs of initiating and prosecuting the suit. Costs are not general damages. The taxing officer therefore misdirected herself on principle by basing the increase from Kshs 193,000 to Kshs 255,000 on the time elapsed since the sale agreement was entered into.

p. 3

Legal principles established

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  • A court cannot interfere with a taxing officer's decision unless it is shown that the decision was based on an error of principle or the fee awarded was manifestly excessive
  • Costs are meant to reasonably reimburse the successful party for costs incurred in the suit, and are not general damages for pre-suit losses

Court orders

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  1. 1.The taxing officer's award of Kshs 255,000 in relation to item Number 1 (instruction fees) of the bill of costs dated 23/9/2017 is set aside and replaced with Kshs 193,000
  2. 2.The taxing officer's award of Kshs 85,000 in relation to item 80 (getting up fees) is set aside and replaced with Kshs 64,333
  3. 3.The rest of the items shall remain as taxed by the taxing officer
  4. 4.The certificate of costs dated 5/12/2018 is recalled and set aside and a fresh certificate of costs is to be issued in tandem with the disposal orders
  5. 5.Each party shall bear their respective costs of the reference

Authorities

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Legislation

  • Advocates (Remuneration) (Amendment) Order 2014Schedule VI, paragraphs 1(b) and 1(j)
  • Advocates (Remuneration) OrderRule 11

Cases cited (9)

  • Zephania Ngaria Agwenye v Moses Lutomia Washidi & Another
    [2015] eKLR
  • Joreth Limited v Kigano & Associates
    [2002] eKLR
  • Belgo Holdings Limited v Robert Kotch Otach & Another
    [2019] eKLR
  • First America Bank of Kenya Limtied v Gulab P Shah & 2 Others
    [2002] 1 EA
  • Republic v Minister of Agriculture & 2 Others Exparte Samuel Muchiri W'Njuguna & Others
    (2006) eKLR
  • Kyalo Mbobu t/a Kyalo & Associates Advocate v Jacob Juma
    [2015] eKLR
  • Twiga Motors Limited v Hon Dalmas Otieno Anyango
    [2015] eKLR
  • Amuga & Co Advocates v Joyce Nzisa & 4 Others
    [2015] eKLR
  • First American Bank of Kenya v Shah & Others
    [2002] 1 EA 64
Jurisdiction invoked
Review of a taxing officer's decision on a reference under Rule 11 of the Advocates (Remuneration) Order

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, "Scholar Wambui Wainaina v Ndoho Market Stalls Limited [2020] KEELC 2016 (KLR)", Case Analysis (2020). Reference by Chamber Summons dated 13/2/2019 (suit judgment delivered 3/10/2016 by Gacheru J). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2016/eng@2020-06-10

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