Samwel Chelule Koech v Kenya Forest Service [2021] KEELC 3995 (KLR)
The bottom line
#A Kenyan court set aside inflated legal fees that were four times the allowed minimum, confirming clients can challenge excessive costs through a reference.
What this practically means
#Executive summary
#Key legal issues
#Competency of the reference for non-compliance with Rule 11(1) of the Advocates (Remuneration) Order
The omission to file a notice of objection or request reasons was not fatal because the Taxing Master's ruling of 15th July 2020 already contained reasons for the decision on the taxed items.
Rule 11(1) and (2) require notice in writing and a request for reasons before filing a reference. However, the court noted that the Taxing Master's written ruling of 15th July 2020 itself contained the reasons for the decision on the items as taxed. Following Ahmednasir Abdikadir & Co. Advocates v National Bank of Kenya Ltd (2), the procedural requirement is not to be ritualistically observed where reasons are already embedded in the formal ruling, so the reference was competent.
Whether the Taxing Master erred in principle in taxing items 1-17 of the Defendant's Bill of Costs
The Taxing Master failed to exercise his discretion judicially: he awarded instruction fees four times the minimum despite a straightforward, non-complex suit, and taxed attendance fees above the prescribed scale; the taxation was set aside and remitted for fresh taxation before another Deputy Registrar.
Applying the principles in First American Bank of Kenya v Shah, Premchand Raichand and Joreth Limited, the court sampled the impugned items. The suit was a straightforward trespass/injunction claim, yet instruction fees of Ksh 300,000/- were awarded, four times the minimum. Attendance fees on short mention dates were taxed at Ksh 2,300/- against the prescribed Ksh 1,100/-, and a half-day rate was awarded for testimony that could not have taken half a day. This demonstrated a wrong principle and manifestly excessive awards justifying interference.
Legal principles established
#- Where the reasons for the taxation on the disputed items are already contained in the ruling, there is no need to seek further reasons before filing a reference under Rule 11 of the Advocates Remuneration Order.
- A court cannot interfere with a Taxing Master's discretion unless it is shown the decision was based on an error of principle or the fee awarded was so manifestly excessive as to justify an inference of error of principle.
- The value of the subject matter for taxation of a bill of costs is determined from the pleadings, judgment or settlement; if not ascertainable, the Taxing Officer may exercise discretion, considering the nature and importance of the cause and other relevant circumstances.
Court orders
#- 1.The taxation of the Defendant's Bill of Costs dated 27th May 2020 and all the consequential orders are set aside.
- 2.The said Bill of Costs is remitted back to another Deputy Registrar to be taxed afresh on the items objected to by the Plaintiff.
- 3.Each party shall bear its own costs for this Application.
- Jurisdiction invoked
- Sections 1A, 1B, 3, 3A of the Civil Procedure Act and Rule 11 of the Advocates (Remuneration) Order 2009 - reference against a Taxing Master's decision
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.
- Nderitu & Waturu Associates Advocates v Peter Kagunyu Kiragu [2021] KEELC 1941 (KLR)[2021] KEELC 1941 (KLR)24 Sept 2021followed
Cite this brief
#Cite this brief
Caselaw, "Samwel Chelule Koech v Kenya Forest Service [2021] KEELC 3995 (KLR)", Case Analysis (2021). Not stated in the judgment (Chamber Summons dated 27th July 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3995/eng@2021-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.