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ELCDismissedChamber Summons application dated 27th May 2021 (reference against Taxing Master's ruling of 15th April 2021)· [2021] KEELC 1637 (KLR)

Mary Wairimu Dames v Langata Development Company Limited [2021] KEELC 1637 (KLR)

High Court of Kenya
12 October 2021
3,850 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court upheld a Ksh 26.7 million legal fee award, confirming judges will not overturn a taxing officer's decision without proof of a genuine legal error.

What this practically means

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Executive summary

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The Applicant, Langata Development Company Limited, filed a reference under Paragraph 11 of the Advocates Remuneration Order challenging a ruling of the Taxing Master, Hon. I.N. Barasa (DR), delivered on 15th April 2021, taxing the Respondent advocate's party-and-party bill of costs dated 17th October 2018 at Ksh 26,738,945/=. The bill arose from a land dispute in which the court had ordered compensation at the prevailing market rate of 85.3 acres comprised in LR No. 7240/23. The Applicant sought vacation of the ruling and re-assessment or remission before a different Taxing Master, arguing the Ksh 20,000,000 instruction fee was excessive, unitemised, and based on an unascertainable subject-matter value, and that the Taxing Master departed from precedent and misdirected herself on principle. The Respondent defended the taxation as a proper exercise of discretion, noting the 12-year litigation, the value appreciation of the land, and failed appeals up to the Supreme Court; she also objected that no certificate of costs accompanied the reference. The court held, first, that the Advocates Remuneration Order does not make a certificate of costs mandatory for filing a reference, so the reference was properly before the court. Second, applying Premchand Raichand, First American Bank v Shah, Joreth Ltd v Kigano and Peter Muthoka v Ochieng, the court found the Taxing Master correctly held the value unascertainable, properly declined to rely on a valuation report obtained without the Applicant's participation, and exercised her discretion judiciously by considering the nature of the suit, the parties' interests, counsel's labour, and the time taken. No error of principle was established, and a judge may not upset a taxation merely because the figure appears high. The reference was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether failure to exhibit a certificate of costs renders a reference incompetent

Holding

It does not; the reference was properly filed

Reasoning

Paragraph 11 of the Advocates Remuneration Order prescribes the procedure for a reference: notice of objection within 14 days, reasons from the taxing officer, then application to the judge in chambers. The provision requires notice of objection and the ruling, not a certificate of costs, and no other provision mandates one. Lack of a certificate therefore cannot invalidate a reference.

p. 3
02

Whether the Taxing Master erred in principle in awarding Ksh 20,000,000 instruction fees where the value of the subject matter was unascertainable

Holding

No error of principle; the discretion was properly exercised

Reasoning

Both parties accepted the value was unascertainable, entitling the taxing officer to use her discretion per Joreth Ltd v Kigano & Associates and Peter Muthoka v Ochieng. She considered the nature of the suit, the interest of the parties, the care and labour of counsel, the 12 years the suit took, and the appreciation in land value, and gave reasons. The court cannot upset a taxation merely because the amount seems high.

p. 5

Legal principles established

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  • A certificate of costs is not a mandatory accompaniment to a reference challenging a taxing master's ruling
  • Where the value of the subject matter is not ascertainable from the pleadings, the taxing officer may exercise discretion to assess instruction fees
  • A judge will not interfere with a taxing officer's assessment merely because he would have allowed a different amount; interference requires error of principle that substantially affected quantum and caused injustice

Court orders

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  1. 1.The reference is declined and dismissed
  2. 2.Each party shall meet their respective costs of the reference

Authorities

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Legislation

  • Advocates Remuneration OrderParagraph 11
  • Advocates’ Remuneration OrderRule 13A (Powers of taxing officer)
  • Advocates (Remuneration) OrderSchedule VI

Cases cited (14)

  • Evans Thiga Gaturu vs Kenya Commercial Bank Limited
    [2012] eKLR
  • Republic vs Commissioner of Domestic Taxes Exparte Ukwala Supermarket Limited and 2 Others
    [2018] eKLR
  • Republic vs Minister of Agriculture & 2 Others Exparte Samuel Muchiri W’Njuguna and 6 Others
    (2006) eKLR
  • KANU National Elections Board & 2 Others vs Salah Yakub Farah
    [2018] eKLR
  • Kenneth Matiba vs The Attorney General
    NRB PET No. 94 of 2014
  • Governors Ballon Safaris Ltd vs Sky Ship Company Ltd & Another
    [2015] eKLR
  • Singh Gitau Advocates vs City Finance Bank
    [2021]
  • KANU National Elections Board & 2 Others vs Sarah Yakub Farah
    [2018]
  • Premchand Raichand Ltd and Another v Quarry Services of East Africa Ltd and Others No.3
    (1972) EA 162
  • First American Bank of Kenya v Shah and Others
    [2002] 1 EA 64
  • National Bank of Kenya Limited (As the Successor in Business of Kenya National Capital Corporation Limited “Kenyac” & Another vs Rachuonyo & Rachuonyo Advocates
    eKLR
  • Joreth Ltd vs Kigano & Associates
    [2002] 1 EA 92
  • Peter Muthoka and Another vs Ochieng and 3 Others
    [2019] eKLR
  • Bank of Uganda v Banco Arabe Espaniol
    Civil Application No. 29 of 2019
Jurisdiction invoked
Paragraph 11 of the Advocates Remuneration Order - reference to a judge in chambers against a taxing master'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, "Mary Wairimu Dames v Langata Development Company Limited [2021] KEELC 1637 (KLR)", Case Analysis (2021). Chamber Summons application dated 27th May 2021 (reference against Taxing Master's ruling of 15th April 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1637/eng@2021-10-12

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