Scholar Wambui Wainaina v Ndoho Market Stalls Limited [2020] KEELC 2016 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the taxing officer used the wrong schedule in taxing the bill of costs
The taxing officer correctly used paragraph 1(b) of Schedule VI because the value of the subject matter was ascertainable from the pleadings
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.
Whether the taxing officer erred in principle in increasing instruction fees by Kshs 62,000
Yes; the taxing officer relied on an irrelevant factor, namely the time passed since the parties entered the sale agreement
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.
Legal principles established
#- 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
#- 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.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.The rest of the items shall remain as taxed by the taxing officer
- 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.Each party shall bear their respective costs of the reference
- Jurisdiction invoked
- Review of a taxing officer's decision on a reference under Rule 11 of the Advocates (Remuneration) Order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.