Export Processing Zones Authority v Nzei & Company Advocates [2021] KEELC 1263 (KLR)
The bottom line
#The court upheld a Kshs 27.4 million legal fee award because the client failed to prove the taxing officer made any error of principle.
What this practically means
#Executive summary
#Key legal issues
#Whether the Taxing Master erred in principle by valuing the subject matter at Kshs 700,000,000 instead of the judgment sum of Kshs 11,664,000
No error of principle; the value of Kshs 700,000,000 was ascertainable from both the pleadings (Defence and Counterclaim) and the judgment
The suit involved ownership and control of sewerage infrastructure pleaded in the Defence and Counterclaim to exceed Kshs 700,000,000. The court found as a fact that the asset was built by the Applicant at that cost, a figure not rebutted. Applying Joreth Ltd v Kigano & Associates and Peter Muthoka v Ochieng, the value of the subject matter is determined from the pleadings, judgment or settlement; since it was ascertainable from both pleadings and judgment, the Taxing Officer correctly based instruction fees on Kshs 700,000,000.
Whether the Taxing Master erred in doubling the instruction fees to cover the counterclaim and awarding getting up fees
The Taxing Officer was entitled to increase instruction fees by 50% as getting up fees under Schedule 6B(a); no error shown on the counterclaim
Schedule 6B(a) of the Advocates (Remuneration) Order 2009 permits an increase of 50% of fees prescribed in Schedule 6A. The counterclaim went to full trial and formed part of the value of the subject matter. The Applicant failed to demonstrate an error of principle in the doubling of instruction fees for the Plaint and Counterclaim.
Whether the claim for disbursements was unproved for lack of receipts
No error of principle; section 74 requires receipts to be produced only if required by the Taxing Master, and there was no evidence the Taxing Officer requested them, the receipts being on the court file
Section 74 of the Advocates Act provides that receipts or vouchers for disbursements shall be produced if required by the Taxing Master. There was no evidence the Taxing Officer requested proof; the Respondent indicated all receipts were in the court file, and the Applicant did not peruse the file to verify. The court therefore could not find an error of principle on this head.
Whether the Taxing Master failed to consider complexity and other relevant factors
The Taxing Officer was entitled simply to base instruction fees on the value of the subject matter; no disregard of proper factors established
Although the Taxing Officer did not explicitly address complexity, nature, interest, conduct or length of proceedings, all she did was base the instruction fees on the value of the suit property, which she was entitled to do. The court found she did not disregard factors or principles proper for her to consider, so the reference failed.
Legal principles established
#- A judge on a reference should not interfere with a taxing officer's assessment of costs unless the taxing officer misdirected himself or herself on a matter of principle
- The value of the subject matter for purposes of instruction fees is determined from the pleadings, judgment or settlement; the taxing officer's discretion arises only where the value is not ascertainable from those sources
- Where a suit involves a claim whose value is ascertainable from the pleadings and confirmed in the judgment, the taxing officer commits no error of principle in basing instruction fees on that value
Court orders
#- 1.Dismissal of the Chamber Summons dated 12th October 2020
- 2.No order as to costs
- Jurisdiction invoked
- Rule 11 of the Advocates Remuneration Order & other enabling provisions of the law
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Export Processing Zones Authority v Nzei & Company Advocates [2021] KEELC 1263 (KLR)", Case Analysis (2021). Chamber Summons dated 12th October 2020 (Reference from Taxing Officer's Ruling of 23rd September 2020 in Advocate/Client Bill of Costs dated 10th June 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1263/eng@2021-10-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.