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ELCPartially AllowedNot stated in the judgment· [2021] KEELC 1641 (KLR)

Catherine Njeri Angote v Lucy Wangari Ngugi & another [2021] KEELC 1641 (KLR)

Environment and Land Court
8 October 2021
3,847 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court corrected a Taxing Master's cost calculation errors but kept the property valuation unchanged, and confirmed VAT cannot be charged on party-and-party costs.

What this practically means

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Executive summary

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The Defendants/Applicants filed a Chamber Summons dated 24th December 2020 seeking setting aside of the Taxing Master's Ruling of 30th November 2020 on their Party and Party Bill of Costs dated 27th January 2020, complaining that instructions fees of Kshs.244,800/= (against a claim of Kshs.6,000,000/=) were inordinately low, that getting up fees were wholly disallowed without reasons, and that VAT computed on the awards was consequently wrong. The Plaintiff/Respondent opposed, contending the Taxing Master followed the Remuneration Order, that no proof of an Kshs.80,000,000/= valuation was tendered, and that VAT should in fact be struck out. The court applied the classical principles in Premchand Raichand, Arthur v Nyeri Electricity Undertaking and Joreth Ltd v Kigano & Associates, and the Muchiri W'njuguna exposition on taxation discretion. It held that instruction fees are pegged to the value of the subject matter at filing, not judgment, and found no error in the Taxing Master's valuation of Kshs.20,000,000/=. However, it found an error in the computation of the additional 2% under Schedule 6, which was applied to Kshs.120,000/= instead of the remainder of the value; it held the applicants entitled to getting up fees; and it agreed VAT is not chargeable in a party and party bill, following Pyramid Motors. The court remitted the Bill of Costs to the Taxing Master to recompute the additional 2%, award getting up fees and tax off VAT, effectively taxing the bill afresh on those items.

Key legal issues

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01

Whether the Taxing Master erred in principle in valuing the suit property at Kshs.20,000,000/= as at filing for instructions fees

Holding

No error; instruction fees are pegged to the value at filing suit and absent a valuation at filing, the court will not interfere

Reasoning

The Taxing Master appreciated the 1993 sale price of Kshs.1,400,000/= but recognised appreciation by the time of filing in 2009. Since instruction fees are assessed as at the date of filing and the applicants provided no valuation at that date, the court found no basis to disturb the valuation. The court noted the Bill's generalised assertions of complexity were not set out with the specificity required by the Muchiri W'njuguna principles.

p. 4
02

Whether the Taxing Master erred in calculating the additional 2% on instructions fees

Holding

Yes - the Taxing Master computed 2% of Kshs.120,000/= instead of 2% of the remainder of the value above Kshs.1,000,000/= (i.e. Kshs.19,000,000/=)

Reasoning

Under Schedule 6 of the Advocates Remuneration Order 2014, where the value exceeds Kshs.1,000,000/= the fee is Kshs.120,000/= plus 2% of the remainder. The Taxing Master applied the 2% to the base fee rather than to the balance of the value, a mathematical misapplication of the Remuneration Order amounting to an error to be corrected on remittance.

p. 4
03

Whether the Taxing Master erred in disallowing getting up fees

Holding

Yes - the applicants were entitled to getting up fees, the matter having proceeded to hearing and judgment with issues joined

Reasoning

Schedule 6 Paragraph 2 of the Remuneration Order provides for getting up fees where a denial of liability is filed or issues are joined. The suit proceeded to hearing and judgment in favour of the applicants on both suit and counterclaim. The Taxing Master wholly disallowed getting up fees without reasons; the court held the item must be included on remittance.

p. 4
04

Whether VAT was properly awarded on the party and party bill

Holding

No - VAT is taxed off; a party and party bill involves no taxable supply between the parties

Reasoning

Section 6(1) of the VAT Act 2015 charges VAT on taxable supplies made by a taxable person. In party and party taxation the successful party, not the advocate, is compensated, so no services are supplied to the opposing party. Relying on Pyramid Motors, the court held VAT could only arise in an advocate-client bill or on proof VAT was actually paid.

p. 4

Legal principles established

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  • The High Court (and by extension the Environment and Land Court) will only interfere with a Taxing Master's decision where there is a clear error of principle or the sums awarded are manifestly excessive or so low as to amount to an injustice
  • Instruction fees are assessed by reference to the value of the subject matter at the time of filing the suit, not the date of judgment
  • A party is entitled to getting up fees where a denial of liability is filed or issues are joined, and the fee shall be not less than one-third of the instruction fee
  • VAT is not chargeable on party and party costs as there is no taxable supply between the parties

Court orders

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  1. 1.The Bill of Costs is remitted back to the Taxing Master to consider the issue of the additional 2% on instructions fees, to award Getting Up Fees, and to tax off the VAT
  2. 2.The Bill of Costs to be taxed afresh by the Taxing Master on those items
  3. 3.It is so ordered
Jurisdiction invoked
Reference against a Taxing Master's decision under the Advocates Remuneration Order 2014 (Environment and Land Court as the successor court to the High Court in land disputes)

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, "Catherine Njeri Angote v Lucy Wangari Ngugi & another [2021] KEELC 1641 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1641/eng@2021-10-08

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