Nolly K. Musango v Peter Odanga & another [2021] KEELC 4330 (KLR)
The bottom line
#Kenya's Environment and Land Court cut legal fees of Kshs 200,000 to Kshs 75,000 for a boundary dispute, ruling the original award was excessively high.
What this practically means
#Executive summary
#Key legal issues
#Whether the value of the subject matter should have been taken as the Kshs. 130,000/= transfer price
No; this was a straightforward boundary dispute in which no party was contesting title or claiming value, so the taxing officer was correct not to consider the value of the subject matter.
The parties were not contesting title and neither claimed money from the other, save an unawarded general damages claim. The case was for the court to ascertain whether the boundaries delineated by the Land Registrar were correct, which the court found they were. The transfer instrument's figure was therefore irrelevant to the assessment of instruction fees.
Whether the taxing officer's considerations under the proviso to Schedule VI (L) were proper
Yes; the level of work done, volume of pleadings, issues litigated and duration of the matter were proper considerations, and the delay was attributable to the applicant herself.
The court held that duration is a critical factor unless the successful party caused the delay. Here the applicant appeared not keen to take hearing dates and the matter proceeded only upon being listed for a service week, so the respondent could not be deprived of the time factor. No erroneous principle was applied.
Whether the increase of instruction fees from Kshs. 6,300/= to Kshs. 200,000/= was manifestly excessive
Yes; the increase was manifestly excessive and the court reduced the instruction fees to Kshs. 75,000/=.
The court noted the taxing officer mistakenly applied Schedule VI (K) instead of (L), and that with no subject matter value the closest equivalent was Schedule VI (I)(b) with a maximum of Kshs. 49,000/=. At more than four times that reference figure, Kshs. 200,000/= was way off the mark even accounting for the properly considered factors.
Legal principles established
#- A court should be slow to interfere with a taxing officer's exercise of discretion, and may only do so on an error of principle or where the fee awarded is manifestly excessive.
- The time taken in litigation is a critical factor a taxing officer may take into account when assessing instruction fees, unless the successful party itself caused the delay.
- In a boundary dispute where no value of the subject matter is in issue, the closest equivalent for assessing fees is a matter of zero value under Schedule VI.
Court orders
#- 1.The assessment of instruction fees at Kshs. 200,000/= is disturbed on account of being manifestly excessive
- 2.The court itself taxed the instruction fees at Kshs. 75,000/=, with VAT to be adjusted accordingly
- 3.The other items in the bill remain as taxed
- 4.No orders as to the costs of the reference
- On appeal from
- Deputy Registrar (Environment and Land Court, Mombasa)
- Mombasa ELC No. 123 of 2011, Nolly K. Musango vs Peter Odanga and the Attorney General - taxation ruling dated 23 January 2020
- Jurisdiction invoked
- Reference against a taxing officer's ruling under the Advocates Remuneration Order, 2006
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nolly K. Musango v Peter Odanga & another [2021] KEELC 4330 (KLR)", Case Analysis (2021). Chamber Summons dated 20 February 2020 (arising from Mombasa ELC No. 123 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4330/eng@2021-02-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.