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ELCAllowedNot stated in the judgment (Chamber Summons dated 27th July 2020)· [2021] KEELC 3995 (KLR)

Samwel Chelule Koech v Kenya Forest Service [2021] KEELC 3995 (KLR)

Environment and Land Court
18 March 2021
2,890 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a reference by way of Chamber Summons dated 27th July 2020, brought under Sections 1A, 1B, 3, 3A of the Civil Procedure Act and Rule 11 of the Advocates (Remuneration) Order, seeking to set aside the Taxing Master's (S.K. Ngetich, Deputy Registrar) decision of 15th July 2020 on the Defendant's Bill of Costs dated 27th May 2020, and to have items 1-17 re-assessed or remitted for fresh taxation. The Respondent opposed through a Replying Affidavit and submissions, but the court found both to be fatally at variance with the prayers in the application, as they addressed stay of execution pending an intended appeal rather than the reference itself; both were therefore disregarded. The court framed two issues: competency of the reference under Rule 11 of the Advocates' Remuneration Order, and whether the Taxing Master committed errors of principle. On the first, following Ahmednasir Abdikadir & Co. Advocates v National Bank of Kenya Ltd (2), the omission to request reasons or give notice was not fatal because the ruling itself contained reasons. On the second, applying First American Bank v Shah, Premchand Raichand, Arthur and Joreth Limited, the court found manifest excesses: instruction fees of Ksh 300,000/- (four times the minimum) for a straightforward, non-complex trespass suit, and attendance fees taxed above the prescribed scale. Concluding the Taxing Master did not exercise his discretion judicially, the court set aside the taxation and all consequential orders, remitted the Bill of Costs to another Deputy Registrar for fresh taxation of the objected items, and ordered each party to bear its own costs.

Key legal issues

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01

Competency of the reference for non-compliance with Rule 11(1) of the Advocates (Remuneration) Order

Holding

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.

Reasoning

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.

p. 3
02

Whether the Taxing Master erred in principle in taxing items 1-17 of the Defendant's Bill of Costs

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The taxation of the Defendant's Bill of Costs dated 27th May 2020 and all the consequential orders are set aside.
  2. 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. 3.Each party shall bear its own costs for this Application.

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A
  • Advocates (Remuneration) OrderRule 11(1), Rule 11(1)(2)
  • Advocates Remuneration Amendment OrderSchedule 6 paragraph 1(j), paragraph 2, paragraph 7

Cases cited (6)

  • Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 Others
    [2018] eKLR
  • Ahmednasir Abdikadir & Co. Advocates vs National Bank of Kenya Ltd (2)
    (2006) 1 EA 5
  • First American Bank of Kenya vs. Shah & Others
    [2002] 1 EA 64
  • Premchand Raichand Limited & Another vs Quarry Services of East Africa Limited and Another
    [1972] E.A 162
  • Arthur vs Nyeri Electricity Undertaking
    [1961] E.A 492
  • Joreth Limited vs Kigano and Associates
    [2002] 1 E.A 92
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.