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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether reliance on a post-judgment valuation report constitutes an error of principle
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
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.
The court's options upon finding an error of principle in taxation
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
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.
Legal principles established
#- 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
#- 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.Item 1 (instruction fees) re-taxed at Kshs. 600,000/=
- 3.Item 2 (getting up fees) re-taxed at Kshs. 200,000/=
- 4.Items 3-98 to remain as taxed by the taxing master at Kshs. 89,510/=
- 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.Each party to bear their own costs of the reference
- Jurisdiction invoked
- Rule 11(2) of the Advocates Remuneration Order, 1962 (reference against a taxing officer's decision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.