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ELCPartially AllowedChamber Summons dated 20 February 2020 (arising from Mombasa ELC No. 123 of 2011)· [2021] KEELC 4330 (KLR)

Nolly K. Musango v Peter Odanga & another [2021] KEELC 4330 (KLR)

Environment and Land Court of Kenya
18 February 2021
2,267 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The applicant, who had been the plaintiff in Mombasa ELC No. 123 of 2011 (a boundary dispute with Peter Odanga in which her suit was dismissed with costs on 29 March 2019), applied by Chamber Summons dated 20 February 2020 to set aside the Deputy Registrar's ruling of 23 January 2020 taxing the respondent's party and party bill of costs at Kshs. 440,663.66, principally challenging instruction fees enhanced from Kshs. 6,300/= to Kshs. 200,000/= under the proviso to Schedule VI of the Advocates Remuneration Order, 2006. She argued the matter was not complex and that the value of the subject matter was the Kshs. 130,000/= transfer price; the respondent maintained it was a boundary dispute with no ascertainable subject matter value. The court agreed the taxing officer was right to disregard subject matter value since no party contested title or claimed value, and held that duration of litigation, volume of pleadings and issues litigated were proper considerations, the delay having been caused by the applicant herself. No error of principle was found. However, the increase to Kshs. 200,000/= - more than four times the Kshs. 49,000/= maximum under Schedule VI (I)(b), the closest equivalent scale for a matter of zero value - was held manifestly excessive. The court opted to re-assess rather than remit, taxing instruction fees at Kshs. 75,000/= with VAT adjusted accordingly, leaving other items as taxed, and made no orders as to costs of the reference.

Key legal issues

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01

Whether the value of the subject matter should have been taken as the Kshs. 130,000/= transfer price

Holding

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.

Reasoning

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.

p. 2
02

Whether the taxing officer's considerations under the proviso to Schedule VI (L) were proper

Holding

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.

Reasoning

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.

p. 2
03

Whether the increase of instruction fees from Kshs. 6,300/= to Kshs. 200,000/= was manifestly excessive

Holding

Yes; the increase was manifestly excessive and the court reduced the instruction fees to Kshs. 75,000/=.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The assessment of instruction fees at Kshs. 200,000/= is disturbed on account of being manifestly excessive
  2. 2.The court itself taxed the instruction fees at Kshs. 75,000/=, with VAT to be adjusted accordingly
  3. 3.The other items in the bill remain as taxed
  4. 4.No orders as to the costs of the reference

Authorities

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Legislation

  • Advocates Remuneration OrderSchedule VI Part A (L)
  • Advocates Remuneration OrderSchedule VI (K)
  • Advocates Remuneration OrderSchedule VI (I)(b)
  • Advocates Remuneration OrderSchedule VI proviso

Cases cited (2)

  • B. Mbai & Associates vs Clerk, Kiambu County Assembly & Another
    (2017) eKLR
  • First American Bank of Kenya vs. Shah and Others
    [2002] 1 EA 64
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

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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, "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.