Benson Ambuti Adega & 2 others v Kibos Sugar and Allied Industries Ltd & 4 others; Kenya Union of Sugar Plantation and Allied Workers(Interested Party) [2022] KEELC 1245 (KLR)
The bottom line
#Kenya's High Court upheld Ksh 4 million in legal fees awarded against NEMA, ruling judges will not disturb a taxing officer's fees without proof of a clear legal error.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was defective for not being brought by chamber summons
The court found the applicant ought to have complied with the rules of procedure and brought the application by chamber summons, but this defect alone did not carry the day as the court proceeded to determine the merits
Paragraph 11(2) of the Advocates Remuneration Order requires an objector to apply to a judge by chamber summons within fourteen days of receiving reasons. The applicant moved by notice of motion under Order 40. The court, citing Moses Mwicigi on procedural compliance and Article 159(2)(d), held procedure had to be observed but still went on to consider the merits, ultimately dismissing the application.
Whether the court has jurisdiction to stay execution of taxed costs given the Advocates Act regime
The court disagreed with the 3rd Respondent and held that stay of execution of taxed costs is available, since taxation of costs is part of the execution process and the Civil Procedure Act applies to proceedings of a civil nature
Relying on Labh Singh Harman Singh Ltd v Attorney General, the court reasoned that section 94 of the Civil Procedure Act and section 89 make the Civil Procedure Act/Rules applicable to the reference, so a party adjudged substantial taxed costs should not pay before its reference is determined. This rejected the argument that the Advocates Act is a complete code excluding such stay.
Whether the taxing officer committed an error of principle in awarding Kshs. 3,000,000 instruction fees and Kshs. 1,000,000 getting-up fees on each bill
No error of principle; the fees awarded were within Schedule 6 (1)(j)(ii) of the Advocates Remuneration Order, being a reasonable sum given the complexity, novelty and importance of the constitutional/environmental petition
Schedule 6 (1)(j)(ii) prescribes a reasonable sum, not less than Kshs. 100,000, for opposed constitutional petitions. The court considered the nature and importance of the petition (closure of three factories, thousands of jobs, approximately Kshs. 2 billion in revenue) and found the taxing officer fair. Interference is only warranted on error of principle or manifest excess, neither of which was shown.
Legal principles established
#- A judge on a reference will not interfere with the taxing officer's discretion unless the taxing officer erred in principle in assessing the costs
- The Civil Procedure Act and Rules apply to proceedings of a civil nature, including references on the taxation of bills of costs under the Advocates Remuneration Order, so stay of execution of taxed costs may be ordered
- Applications objecting to a taxing officer's decision must be brought by way of chamber summons as required by paragraph 11 of the Advocates Remuneration Order
Court orders
#- 1.The Application dated 25th November 2021 is dismissed with costs
- Jurisdiction invoked
- Paragraph 11 of the Advocates Remuneration Order, 2014 (reference to a Judge from the Taxing Officer's decision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benson Ambuti Adega & 2 others v Kibos Sugar and Allied Industries Ltd & 4 others; Kenya Union of Sugar Plantation and Allied Workers(Interested Party) [2022] KEELC 1245 (KLR)", Case Analysis (2022). Petition No 8 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1245/eng@2022-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.