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ELCPartially AllowedMombasa ELC Petition No. 1 of 2016 (References dated 6th September 2021 and 12th November 2021)· [2022] KEELC 692 (KLR)

KM (Minor suing through Mother and Best-friend SKS) & 9 others v Attorney General & 7 others [2022] KEELC 692 (KLR)

Environment and Land Court
22 March 2022
NMN.A. Matheka
3,970 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 threw out a Kshs. 74 million legal fee award because the taxing officer used the wrong property value to calculate it.

What this practically means

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Executive summary

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Before the Environment and Land Court at Mombasa were two references against the ruling of Taxing Master C. A. Ogweno delivered on 19th August 2021, taxing the Petitioners' bill of costs arising from Mombasa ELC Petition No. 1 of 2016 at Kshs. 74,335,956.67. The 6th Respondent's application dated 6th September 2021 sought a stay and setting aside of the taxation on grounds of errors of principle, including adoption of a wrong subject matter value of Kshs. 3 billion instead of Kshs. 2 billion, application of the wrong scale, failure to consider its submissions, and manifestly excessive instruction fees, getting up fees and disbursements. The 4th Respondent's application dated 12th November 2021 sought enlargement of time to file its reference, having been absent when the ruling was delivered, and contended that items 1, 98 and 106 were manifestly excessive. The Petitioners opposed, arguing the notices of objection were out of time and the reasons for delay untenable. Relying on Rule 11 of the Advocates Remuneration Order, the Ivita vs Kyumba test, the Supreme Court's extension-of-time principles in Aviation and Allied Workers Union and Salat v IEBC, and the First American Bank, Joreth and Muchiri W'njuguna authorities on interference with taxation, the court found the delay not inordinate and satisfactorily explained, and granted enlargement of time. Perusing the judgment of Judge Omollo, the court confirmed the subject matter was Kshs. 2 billion, whereas the Taxing Master had expressly valued it at Kshs. 3 billion, an error of principle. The court set aside the entire taxation decision and remitted the bill of costs dated 19th August 2020 to another Taxing Master for taxation, with costs to the 4th and 6th Respondents.

Key legal issues

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01

Whether the delay of about three months in filing the reference was inordinate and excusable

Holding

The delay was not inordinate given the nature of the case and was satisfactorily explained; time was enlarged

Reasoning

Applying the Supreme Court principles in Aviation and Allied Workers Union vs KQ Ltd and Nicholas Arap Korir Salat v IEBC, the court found the roughly three-month delay not inordinate bearing the nature of the case, and accepted the explanation that the applicant was absent when the ruling was delivered and only obtained a copy after writing to and visiting the registry.

p. 4
02

Whether the Taxing Master erred in principle by valuing the subject matter at Kshs. 3 billion

Holding

The judgment in the substantive petition awarded Kshs. 1.3 billion on a proposal referencing Kshs. 2 billion, not Kshs. 3 billion; the Taxing Master used the wrong subject matter value, which was an error of principle

Reasoning

The court perused the judgment of Judge Omollo and confirmed the subject matter was Kshs. 2 billion. The Taxing Master had expressly stated the subject matter was Kshs. 3 billion. Since the amount or value of the subject matter is a relevant factor in taxation, the discrepancy amounted to an error in principle justifying interference with the taxation.

p. 5
03

Whether the Taxing Master's ruling should be set aside and remitted

Holding

Both applications were merited; the entire taxation decision was set aside and the bill remitted to another Taxing Master

Reasoning

Guided by First American Bank of Kenya vs Shah, Joreth Ltd vs Kigano and Republic vs Minister for Agriculture ex parte Samuel Muchiri W'njuguna, the court held that a wrong subject matter value is an error of principle, that the normal practice where errors of principle exist is remittal for reassessment, and accordingly set aside the ruling and remitted the bill to a different taxing officer.

p. 5

Legal principles established

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  • A court cannot interfere with a taxing officer's decision on taxation unless it is shown that the decision was based on an error of principle, or the fee awarded was so manifestly excessive as to justify an inference that it was based on an error of principle
  • The value of the subject matter is a relevant factor in taxing a bill of costs, and using a wrong value for the subject matter constitutes an error of principle
  • Extension of time is an equitable remedy available only to a deserving party at the court's discretion, and the applicant bears the burden of explaining the delay

Court orders

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  1. 1.The Taxing Master's decision on the taxed bill of costs dated 19th August 2020 and ruling delivered on 19th August 2021 be and is hereby set aside
  2. 2.The bill of costs dated 19th August 2020 shall be remitted to another Taxing Master for taxation
  3. 3.Costs to the 4th and 6th Respondents
  4. 4.Orders 1, 2 and 3 of the 4th Respondent's application dated 12th November 2021 granted (enlargement of time to file the reference; notices of objection deemed properly filed; reference deemed properly filed)

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 25(c), 50(1), 159
  • Advocates Act
  • Advocates Remuneration Order 2009Rule 11(1), 11(2), 11(4); Paragraph II
  • Advocates (Remuneration) (Amendment) Order 2014Paragraph 1(b); Schedule VI para (j), Schedule 6(l)
  • Civil Procedure ActSection 3A

Cases cited (7)

  • Ivita vs Kyumba
    (1984) KLR 441
  • Aviation and Allied Workers Union vs KQ Ltd
    (2015) eKLR
  • Nicholas Arap Korir Salat v IEBC & 7 Others
    SC Application No. 16 of 2014
  • Evans Thiga Gaturu vs Kenya Commercial Bank Limited
    (2012) eKLR
  • First American Bank of Kenya vs Shah and Others
    (2002) EA 64 / (2002) E.A.L.R 64
  • Joreth Ltd vs Kigano and Associates
    (2002) 1 EA 92
  • Republic vs. Minister for Agriculture & 2 Others ex parte Samuel Muchiri W’njuguna
    (2006) eKLR
On appeal from
Taxing Master, Environment and Land Court, Mombasa (C. A. Ogweno)
Mombasa ELC Petition No. 1 of 2016
Jurisdiction invoked
Rule 11 of the Advocates Remuneration Order 2009; Articles 25(c), 50(1) and 159 of the Constitution of Kenya 2010; section 3A of the Civil Procedure Act

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, "KM (Minor suing through Mother and Best-friend SKS) & 9 others v Attorney General & 7 others [2022] KEELC 692 (KLR)", Case Analysis (2022). Mombasa ELC Petition No. 1 of 2016 (References dated 6th September 2021 and 12th November 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/692/eng@2022-03-22

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