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ELCPartially AllowedChamber Summons dated 17/8/2021 (application under Rule 11(2) of the Advocates Remuneration Order)· [2021] KEELC 1322 (KLR)

Julia Wanjiku Gaburia (Suing as the Legal Administrator of the Estate of the late Joseph Gaburia Mitaru v Sammy Ndungu Mungai & District Land Registrar [2021] KEELC 1322 (KLR)

Environment and Land Court
28 October 2021
2,765 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court cut a costs award by over Kshs. 600,000 because the taxing officer wrongly used a post-judgment valuation report instead of the pleadings or judgment.

What this practically means

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Executive summary

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The applicant, the 1st defendant in the underlying suit, moved the court by Chamber Summons dated 17/8/2021 under Rule 11(2) of the Advocates Remuneration Order seeking to set aside the taxing officer's decision of 4/8/2021 taxing a party and party bill of costs dated 30/11/2020 at Kshs. 1,502,843, or alternatively re-taxation or remittal to a different taxing officer. He contended the taxing master erred by basing instruction fees on a plaintiff's valuation report filed on 27/5/2021, after judgment on 1/10/2020, contrary to Schedule 6 of the ARO which requires value to be derived from the pleadings, judgment or settlement. The respondent maintained the valuation was necessary because the fraud claim carried no stated value, was served without objection, and that no error of principle was demonstrated. The court framed the sole issue as whether the taxing master applied correct principles. Relying on Joreth v Kigano and Sammy Some Kosgei, the court held the taxing officer erred in principle by basing taxation solely on a valuation document filed after judgment and not forming part of the pleadings, judgment or settlement; the suit involved no damages claim, so the value of the subject matter was not in issue. The court held it could either remit or re-tax and chose to re-tax to bring finality. Instruction fees were re-assessed at Kshs. 600,000 and getting up fees at Kshs. 200,000; items 3-98 remained as taxed (Kshs. 89,510). The alleged consent settling costs at Kshs. 700,000 was disregarded as the parties had confirmed non-agreement before the taxing master. The application succeeded in terms of prayers (a), (b) and (c), with the global award set at Kshs. 889,510 and each party bearing their own costs of the reference.

Key legal issues

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01

Whether reliance on a post-judgment valuation report constitutes an error of principle

Holding

Yes - the value of the subject matter must be ascertained from the pleadings, judgment or settlement; a valuation report filed after judgment and not part of the pleadings cannot be the sole basis of taxation

Reasoning

The taxing officer based instruction fees on a valuation report filed on 27/5/2021, almost a year after judgment delivered on 1/10/2020. The court found the value of the subject matter was not in issue in the suit - the claim was for an injunction over allegedly fraudulent title, with no claim for damages. Under Schedule VI, value must come from pleadings, judgment or settlement; absent that, the taxing officer should have exercised her own discretion considering all relevant matters.

p. 3
02

The court's options upon finding an error of principle in taxation

Holding

The court may remit the bill to the taxing officer with directions or re-tax it itself; here it chose to re-tax to bring finality

Reasoning

Relying on Kipkorir Titoo & Kiara Advocates and Orion East African Ltd, the court noted the general practice is remittal but the judge has a discretion to deal with the matter himself where justice requires. Since only items 1 and 2 were affected, the court re-taxed instruction fees at Kshs. 600,000 considering the nature and importance of the suit, the advocate's labour, complexity and general conduct, and getting up fees at one-third.

p. 3

Legal principles established

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  • The exercise of the taxing master's discretion will not be interfered with unless it is found that he/she has not exercised his/her discretion properly
  • The value of the subject matter for taxation must be determined from the pleadings, judgment or settlement; if not ascertainable, the taxing officer must exercise discretion considering relevant matters
  • On a reference, a judge who finds an error of principle has a discretion either to remit for re-taxation or to re-tax the bill himself where the justice of the case so requires

Court orders

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  1. 1.The decision of the taxing officer delivered on 4/8/2021 set aside as far as items 1 and 2 (instruction fees and getting up fees) of the party and party bill of costs dated 30/11/2020
  2. 2.Item 1 (instruction fees) re-taxed at Kshs. 600,000/=
  3. 3.Item 2 (getting up fees) re-taxed at Kshs. 200,000/=
  4. 4.Items 3-98 to remain as taxed by the taxing master at Kshs. 89,510/=
  5. 5.Global sum of Kshs. 889,510/= awarded to the plaintiff/respondent on the party and party bill of costs dated 30/11/2020
  6. 6.Each party to bear their own costs of the reference

Authorities

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Legislation

  • Advocates (Remuneration) Order, 1962Rule 11(2)
  • Advocates (Remuneration) Order, 2014Schedule 6, paragraphs 1(a) and 1(b); proviso (i) of Rule 1 of Schedule VI
  • Advocates Actnot specified

Cases cited (10)

  • Kanu National Elections Board & 2 Others v Salah Yakub Farah
    2018 eKLR
  • Peter Muthoka & Another v Ochieng & 3 others
    [2019] eKLR
  • Republic vs Ministry of Agriculture & 2 others Ex parte Muchiri W'njuguna & 6 others
  • Sammy Some Kosgei v Grace Jelel Boit
    [2014] eKLR
  • Joreth v Kigano
  • Kipkorir Titoo & Kiara Advocates vs Deposit Protection Fund Board
  • D'Sonza v Ferrao
    [1960] EA 602
  • Devshi Dhanji Naran Patel (No. 2)
    [1978] KLR 243
  • Orion East African Ltd vs Permanent Secretary of Agriculture & Another, Nairobi High Court, Petition No. 100 of 2012
    (2013) eKLR
  • First American Bank of Kenya Ltd v Gulab P Shah & Others
    [2002] 1 E.A. 61
Jurisdiction invoked
Rule 11(2) of the Advocates Remuneration Order, 1962 (reference against a taxing officer's decision)

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, "Julia Wanjiku Gaburia (Suing as the Legal Administrator of the Estate of the late Joseph Gaburia Mitaru v Sammy Ndungu Mungai & District Land Registrar [2021] KEELC 1322 (KLR)", Case Analysis (2021). Chamber Summons dated 17/8/2021 (application under Rule 11(2) of the Advocates Remuneration Order). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1322/eng@2021-10-28

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