Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedReference dated 18th May, 2021· [2022] KEELC 1026 (KLR)

Edward Mutinda Ndetei & 2 others v Director of Lands & Urban & another [2022] KEELC 1026 (KLR)

High Court of Kenya
9 March 2022
CMC. G. Mbogo
1,185 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's High Court set aside a low costs award, confirming that winning a striking-out application also earns costs for defending the whole suit.

What this practically means

#

Executive summary

#
This reference dated 18th May 2021, brought under Rules 2, 11(1) and (2) of the Advocates (Remuneration) Order and Section 3A of the Civil Procedure Act, challenged the ruling of Taxing Officer Hon. Otieno J. dated 3rd May 2021, who had taxed the Defendants' party and party bill of costs at Kshs. 27,550/= only in respect of the striking-out application dated 19th January 2018, omitting costs of the main suit. The Applicants argued that the ruling of 5th February 2019 struck out the suit and awarded costs for both the main suit and the application, so the Taxing Officer erred in principle. The Plaintiffs/Respondents countered that the Taxing Officer's discretion under Rule 16 had been properly exercised, no error of principle was shown, and the modest quantum reflected that the suit never went to full hearing. Citing the decision of Ringera J. in First American Bank of Kenya v Shah, Mbogo J. reiterated that a court interferes with a taxing decision only where it rests on an error of principle or the fee is manifestly excessive. The court held that the Taxing Officer clearly erred in principle by failing to appreciate that the 2019 ruling disposed of both the suit and the application; as the Defendants had filed a defence, they were entitled to costs of defending the entire suit, to be assessed with reference to Schedule 6A of the Advocates (Remuneration) Order. The reference was allowed in terms of prayers (i) and (ii): the taxation decision was set aside and the bill remitted for re-taxation with proper directions.

Key legal issues

#
01

Whether the Taxing Officer erred in principle by awarding costs only for the striking-out application and not the main suit

Holding

She did err: the Ruling of 5th February 2019 disposed of both the main suit and the application, so the Defendants were entitled to costs of defending the entire suit

Reasoning

The court found it common ground that interference is warranted where taxation rests on wrong principles. The Ruling of 5th February 2019 struck out the suit and awarded costs for both the main suit and the application, yet the Taxing Officer assessed costs only for the application dated 19th January 2018. Having filed a defence on 6th September 2017, the Defendants were deprived of their entitlement to the costs of the suit, to be assessed with reference to Schedule 6A of the Advocates (Remuneration) Order.

p. 2
02

Whether the Respondents' submission that the quantum was reasonable because the matter did not proceed to full hearing could sustain the taxation

Holding

Rejected as baseless; the instruction fee is a static item not affected by the stage a suit reached

Reasoning

Relying on First American Bank of Kenya v Shah, the court noted the instruction fee is an independent and static item, earned upon filing of a defence, and subsequent progress of the matter is not relevant. The Respondents' contention that non-proceeding to full hearing justified the low quantum therefore could not stand.

p. 2

Legal principles established

#
  • A court will not interfere with a Taxing Officer's decision unless it was based on an error of principle or the fee awarded was so manifestly excessive as to justify an inference of error of principle
  • Where a Taxing Officer's decision discloses errors of principle, the normal practice is to remit the bill back for reassessment unless the error did not materially affect the assessment

Court orders

#
  1. 1.The decision of the Taxing Master delivered on 3rd May, 2021 in so far as it relates to the reasoning and determination pertaining to the taxation of the bill of costs dated 23rd February, 2021 is set aside
  2. 2.The matter is referred back for re-taxation of the bill of costs dated 23rd February, 2021 with proper directions

Authorities

#

Legislation

  • Advocates (Remuneration) OrderRules 2, 11(1) and (2), Rule 16, Schedule 6A
  • Civil Procedure ActSection 3A

Cases cited (7)

  • First American Bank of Kenya v Shah and others
    [2002] 1 EA 64 (CCK)
  • Steel Construction Petroleum Engineering (EA) Limited v Uganda Sugar Factory
    [1970] EA 141
  • Arthur v Nyeri Electricity Underwriters
    [1961] EA 492
  • Nanyuki Esso Service v Touring and Sports Cabs Ltd
    [1972]
  • Joreth Ltd v Kigano and Associates
    [2002] 1 EA 88 (CAK)
  • Mayers v Hamilton
    [1975] EA 13
  • Republic v Kenyatta University & another Ex parte Wellington Kihato Wamburu
    [2018] eKLR
On appeal from
Taxing Officer (this Court)
Party and party bill of costs dated 23rd February, 2021
Jurisdiction invoked
Rules 2, 11(1) and (2) of the Advocates (Remuneration) Order and Section 3A of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Edward Mutinda Ndetei & 2 others v Director of Lands & Urban & another [2022] KEELC 1026 (KLR)", Case Analysis (2022). Reference dated 18th May, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1026/eng@2022-03-09

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