Purity Gathoni Githae & another v Exello Structures Limited & another [2020] KEELC 3516 (KLR)
The bottom line
#Kenya's High Court threw out a lawyer's fee award because the taxing officer relied on a property value a party supplied, ordering the bill be taxed afresh.
What this practically means
#Executive summary
#Key legal issues
#Whether the taxing officer committed errors of principle in assessing instruction fees (item 1)
Yes - she failed to state the schedule/scale applied and took into account the value of Kshs 40,000,000 proffered by the 2nd defendant and the resultant fee of Kshs 614,000, matters she should not have considered
The taxing officer awarded Kshs 500,000 without stating the applicable schedule or scale, and without indicating whether she accounted for the suit against the 2nd defendant being terminated before trial. She then expressly considered the purported value of Kshs 40,000,000 and the probable fee of Kshs 614,000, contrary to the principle that she should not undertake a valuation or receive a value from a party. These errors went to the root of the entire exercise.
Whether the preliminary objection against the reference should be upheld
No - it was dismissed as unargued and unprosecuted
The 2nd defendant put forward no written or oral submissions on the preliminary objection, instead adopting earlier submissions filed before the objection was even lodged. Since the objection was never ventilated, the court dismissed it for lack of merit and proceeded to the substantive reference.
Legal principles established
#- Superior courts do not liberally interfere with a taxing officer's decision; they do so only on a clear error of principle, failure to consider a relevant factor, or where the sum awarded is manifestly high or low as to amount to an injustice
- Where the value of the subject matter is not ascertainable from the pleadings, the taxing officer may use discretion to assess the instruction fee but must not undertake a valuation of the subject matter or receive a value from a party (Joreth Limited v Kigano & Associates)
Court orders
#- 1.Preliminary objection dated 17/9/2018 dismissed for lack of merit
- 2.Entire decision of the taxing officer rendered on 22/7/2014 set aside
- 3.2nd defendant's bill of costs to be taxed afresh before a different taxing officer of the court
- Jurisdiction invoked
- Paragraph 11 of the Advocates (Remuneration) Order - reference against a taxing officer's decision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Purity Gathoni Githae & another v Exello Structures Limited & another [2020] KEELC 3516 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3516/eng@2020-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.