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ELCDismissedNotice of Motion dated 19th September 2019 (in the suit arising from Originating Summons re LR No. 20902/IR No. 66639)· [2020] KEELC 2388 (KLR)

Peter Njoroge Gatua & 351 others v Willmac Cattle Farm Limited [2020] KEELC 2388 (KLR)

Environment and Land Court
22 May 2020
1,691 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed it will rarely overturn a Taxing Master's legal fee decision unless an error of principle or a clearly excessive or inadequate fee is shown.

What this practically means

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Executive summary

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The Applicant firm of advocates, Joel Kimutai Bosek Advocates, brought a Notice of Motion dated 19th September 2019 seeking to set aside the Taxing Master's orders of 30th August 2019 and to have the Bill of Costs dated 13th August 2019 re-taxed based on the actual value of the subject property, LR No. 20902 (IR No. 66639). The firm had acted for the Defendant in an Originating Summons by the Plaintiffs claiming registration as proprietors of that land through adverse possession, on an agreement that fees would be paid on sale of the property. After the client secretly sold the land through another advocate, the firm ceased acting, then filed its Bill of Costs. Taxation proceeded unopposed, reducing the bill from Ksh 2,255,205/= to Ksh 258,975/=. The Applicant argued the Taxing Master ignored the property's value, the matter's complexity, the time expended, and the provisions of Schedule 6(b) of the Advocates Remuneration Order, relying on Republic v Minister for Agriculture ex-parte Samuel Nuchiri W'njugun and Joreth v Kigano. The Respondent did not respond or file submissions despite service. Justice M.C. Oundo applied the First American Bank of Kenya v Shah principles for interfering with a Taxing Officer's discretion, as reaffirmed in Joreth Limited v Kigano and Associates. He found the matter was not complex and that counsel's work was ordinary, consisting of a two-page Replying Affidavit with no hearing thereafter. Citing the Ugandan Supreme Court in Ssemogerere, he held the taxing officer's assessment of a reasonable fee should not be interfered with lightly. The court dismissed the application with no costs.

Key legal issues

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01

Whether the Taxing Master erred in principle by failing to base instruction fees on the value of the subject property

Holding

No error established. The value of the subject matter is ascertained from the pleadings, judgment or settlement; where the claim was an Originating Summons for adverse possession and the matter was not complex or opposed, the fixed scale fees under Schedule 6 were appropriate, and the Taxing Master's discretion was properly exercised

Reasoning

The court applied First American Bank and Joreth Ltd v Kigano principles, noting relevant factors include the nature and importance of the matter, value of subject matter, interest of parties and conduct of proceedings. The Applicant came on record in 2016, filed a two-page Replying Affidavit, and the matter never proceeded to hearing; nothing showed complexity or extraordinary industry. The failure to demonstrate the calculation was erroneous defeated the application.

p. 2
02

Whether the fee awarded was manifestly low so as to justify interference

Holding

The fee awarded was neither manifestly excessive nor manifestly low; no injustice was shown

Reasoning

Relying on the Ssemogerere decision of the Supreme Court of Uganda, the court held that the taxing officer's opinion on the reasonable fee is not to be interfered with lightly and there must be a compelling reason. The Applicant did not cogently demonstrate complexity, time, or industry that would warrant a fee beyond the scale.

p. 2

Legal principles established

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  • A court cannot interfere with the taxing officer's discretion on taxation unless the decision was based on an error of principle or the fee awarded was manifestly excessive or low
  • Where errors of principle are disclosed, the normal practice is to remit for reassessment; the court is not entitled to upset a taxation merely because it considers the amount high
  • The value of the subject matter for taxation is determined from the pleadings, judgment or settlement; if not ascertainable, the Taxing Officer may use discretion to assess a just instruction fee
  • There is no formula for calculating instruction fees; it is an intricate balancing act and the taxing officer's opinion on the reasonable fee is not to be interfered with lightly

Court orders

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  1. 1.The Application (which the court in its final order refers to as dated the 13th August 2019) is dismissed
  2. 2.No costs awarded (application dismissed with no cost)

Authorities

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Legislation

  • Advocates Remuneration OrderSchedule 6(b)
  • Advocates Remuneration OrderSchedule 6 paragraph 1(j)(ii)

Cases cited (7)

  • Republic vs Minister for Agricultural & 2 Others ex-parte Samuel Nuchiri W'njugun
  • Joreth vs Kigano & Another EA 92
    EA 92
  • First American Bank of Kenya vs. Shah & Others
    [2002] 1 EA 64
  • Premchand Raichand Limited & Another vs Quarry Services of East Africa Limited and Another
    [1972] E.A 162
  • Arthur vs Nyeri Electricity Undertaking
    [1961] E.A 492
  • Joreth Limited vs Kigano and Associates
    [2002] 1 E.A 92
  • Paul K. Ssemogerere & Another vs. Attorney General
    Civil Application No.5 of 2001 [2003] UGSC 8
Jurisdiction invoked
Inherent powers of the Environment and Land Court to review/set aside the Taxing Master's decision on a Bill of Costs

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, "Peter Njoroge Gatua & 351 others v Willmac Cattle Farm Limited [2020] KEELC 2388 (KLR)", Case Analysis (2020). Notice of Motion dated 19th September 2019 (in the suit arising from Originating Summons re LR No. 20902/IR No. 66639). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2388/eng@2020-05-22

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