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ELCDismissedPetition No 8 of 2018· [2022] KEELC 1245 (KLR)

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)

High Court of Kenya (Environment and Land Court)
24 February 2022
4,935 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~20 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a reference to a Judge under paragraph 11 of the Advocates Remuneration Order, 2014, by the National Environment Management Authority (NEMA), the 4th Respondent, seeking a stay of execution of three taxing officer rulings delivered simultaneously on 4th November 2021 and the setting aside of the instruction and getting-up fees (Kshs. 3,000,000 and Kshs. 1,000,000 respectively on each of three party-and-party bills of costs, totalling Kshs. 12,872,854) arising from a constitutional/environmental petition it lost. The court framed two issues: whether the application was defective, and whether it was merited. On the first, it held that the applicant ought to have moved by chamber summons as paragraph 11(2) requires, since it had instead invoked Order 40 of the Civil Procedure Rules. On stay, the court disagreed with the 3rd Respondent's argument that the Advocates Act is a complete code excluding such relief, adopting Labh Singh Harman Singh Ltd v Attorney General that the Civil Procedure Act (sections 89 and 94) applies to civil-nature proceedings including references, so stay of taxed costs may be granted. On the merits, applying Schedule 6 (1)(j)(ii) - a reasonable sum of not less than Kshs. 100,000 for opposed constitutional petitions - and considering the complexity, novelty and importance of the petition (closure of three factories, thousands of jobs, roughly Kshs. 2 billion in revenue), the court held the taxing officer exercised her discretion fairly and there was no error of principle or manifest excess. The application dated 25th November 2021 was dismissed with costs on 24th February 2022 by Antony Ombwayo J, sitting in Kisumu.

Key legal issues

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01

Whether the application was defective for not being brought by chamber summons

Holding

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

Reasoning

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.

p. 5
02

Whether the court has jurisdiction to stay execution of taxed costs given the Advocates Act regime

Holding

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

Reasoning

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.

p. 6
03

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

Holding

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

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The Application dated 25th November 2021 is dismissed with costs

Authorities

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Legislation

  • Advocates Remuneration Order, 2009/2014Paragraph 11 (1)-(5)
  • Advocates Remuneration Order, 2014Schedule 6 (1)(j) and Schedule 6A (j)
  • Civil Procedure Rules, 2010Order 40
  • Civil Procedure ActSections 89 and 94
  • Government Proceedings ActNot specified
  • Advocates ActNot specified
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (25)

  • First American Bank of Kenya Ltd v Gulab P. Sha & 2 Others
    (2002) eKLR
  • Ratemo Oira & Co. Advocates v Magereza Sacco Society Ltd
    (2019) eKLR
  • Republic vs Ministry of Agriculture & 2 Others Ex parte Muchiri W'njuguna & 6 Others
  • Cannon Assurance Limited v Attorney General & Another
    (2018) eKLR
  • Kenvariri and Associates Advocates v Salama Beach Hotel Limited & 3 Others
    (2015) eKLR
  • Lalji Bhimji Shangani Builders & Contractors vs City Council of Nairobi
    (2012) eKLR
  • OJSC Power Machines Limited, Transcentury Limited and Civicon Limited (Consortium) vs Public Procurement Administrative Review Board
    Kisii High Court Misc Application No. 31 of 2016
  • Muri Mwaniki & Wamiti Advocates v African Banking Corporation Limited
    (2020) eKLR
  • Wambugu Motende & Co. Advocates v Kajulu Holdings Limited & 5 Others
    (2014) eKLR
  • Joseph Tamata v Mary Nthambi Mbuvi
    (2021) eKLR
  • Thomas James v Nyeri Electricity Undertaking
    (1961) E.A 492
  • Kerosi Ondieki & Company Advocates v Narok County Government
    (2017) eKLR
  • Seth Ambusini Panyako v Independent Electoral and Boundaries Commission & 2 Others
    (2020) eKLR
  • Administrators of the Estate of Simon Mokua Gichuru v Ameli Inyangu & Partners Advocates
    (2017) eKLR
  • Lubullelah & Associates Advocates v P& L Investments Limited & Another
    (2013) eKLR
  • Orbit Chemicals Industries Ltd versus Otieno-Odek & Co. Advocates
    (2006) eKLR
  • First American Bank Ltd v Shah & Another
    (2002) 1 EA 64
  • DK Law Advocates vs Zhong Gang Building Material Co. Limited & Another
    (2021) eKLR
  • Moses Mwicigi & 14 Others v Independent Electoral and Boundaries Commission & 5 Others
    [2016] eKLR
  • Labh Singh Harman Singh Ltd V Attorney General & 2 Others
    [2016] eKLR
  • Kagwimi Kang'ethe & Company Advocates v O-lerai Nurseries Limited
    [2009] eKLR
  • Kipkorir Titoo & Kiara Advocates vs Deposit Protection Fund Board
    [2005] eKLR
  • Joreth Limited v Kigano & Associates Advocates
    [2002] EA 92
  • Mereka & Co. Vs. National Bank of Kenya Ltd.
    Misc. Application No. 540/2001
  • Rogan Kamper & Grosvenor
    [1989] KLR
Jurisdiction invoked
Paragraph 11 of the Advocates Remuneration Order, 2014 (reference to a Judge from the Taxing Officer's decision)

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, "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.