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ELCPartially AllowedChamber Summons application dated 16th September 2021 (Reference)· [2022] KEELC 2184 (KLR)

Apollo Muinde & Partners Advocates v National Land Commission (Environment and Land Miscellaneous Application 14 of 2021) [2022] KEELC 2184 (KLR)

High Court of Kenya
9 June 2022
1,256 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a reference by Apollo Muinde & Partners Advocates, by Chamber Summons dated 16th September 2021, challenging the Taxing Master's ruling of 17th August 2021 taxing Items 1, 2 and 3 of their Bill of Costs dated 12th April 2021 (taxed overall at Kshs.120,900/-) in proceedings against the National Land Commission. The Applicant objected to the taxation, obtained reasons, and contended that Item 1 (instruction fee) was wrongly taxed because the Taxing Master held that the value of the subject matter could not be determined from the pleadings, proceedings or rulings. The National Land Commission, though served, did not respond. The court, applying the principles in Kipkorir Tito & Kiara Advocates v Deposit Protection Fund Board and Vipul Premchand Haria v Kilonzo and Company Advocates, that interference lies only where the Taxing Officer errs in principle, examined the underlying Nyeri High Court Petition No. 12 of 2015. That Petition sought declarations of violation of property rights over 108 acres (Aguthi/Gaki/865) and compensation including Kshs.535,000,000/- open market value, supported by a valuation report of M/S Camp Valuers dated 1st December 2014. The court held the Taxing Master's finding that the subject value could not be ascertained was unsupported by the facts, amounting to an error in principle. The reference was allowed: the taxation of Items 1, 2 and 3 was set aside and the matter referred back for re-taxation before a Taxing Master other than Honourable M. N. Lubia, Deputy Registrar, with no order as to costs.

Key legal issues

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01

Whether the Taxing Master erred in principle in taxing Item 1

Holding

Yes - the value of the subject matter was ascertainable from the pleadings and a valuation report annexed to the Petition, so the Taxing Master's contrary finding was unsupported by the facts

Reasoning

The Taxing Master held that the value of the subject matter could not be determined from the pleadings or rulings and taxed Item 1 at 75% of Kshs.75,000/-. The court found the Petition expressly valued the land at Kshs.535,000,000/- and annexed a valuation report by M/S Camp Valuers. The conclusion that the value could not be ascertained was therefore not supported by the record, amounting to an error of principle justifying interference on reference.

p. 3
02

Whether the taxation of Items 1, 2 and 3 should be set aside and re-taxed

Holding

The taxation of Items 1, 2 and 3 was set aside and the matter referred back for re-taxation before a different Taxing Master

Reasoning

Having found that the Taxing Master's reasons for Item 1 were not supported by the facts, and the Applicant being aggrieved by the treatment of Items 1, 2 and 3, the court allowed the reference. To ensure fairness, re-taxation was directed before a Taxing Master other than the Honourable M. N. Lubia, Deputy Registrar, with no order as to costs.

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Legal principles established

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  • A judge on reference from taxation will not normally interfere with a Taxing Officer's discretion unless the Taxing Officer erred in principle
  • The taxing officer's discretion is judicial and must be exercised judiciously, with reasons that show whether it was properly exercised

Court orders

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  1. 1.The taxation of Item Nos 1, 2 and 3 of the Applicant's Bill of Costs dated 12th April 2021 is set aside
  2. 2.The matter is referred back for re-taxation of the said items by a Taxing Master other than the Honourable M. N. Lubia, Deputy Registrar
  3. 3.No order as to costs

Authorities

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Legislation

  • Advocates Remuneration OrderAmendment Order 2014 (scale fees)
  • Constitution of KenyaArticle 40

Cases cited (2)

  • Kipkorir Tito & Kiara Advocates v Deposit Protection Fund Board
    (2005) eKLR
  • Vipul Premchand Haria v Kilonzo and Company Advocates
    (2020) eKLR
Jurisdiction invoked
Reference from a Taxing Master's decision on taxation of a Bill of Costs (inherent jurisdiction of the High Court over references from taxation)

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, "Apollo Muinde & Partners Advocates v National Land Commission (Environment and Land Miscellaneous Application 14 of 2021) [2022] KEELC 2184 (KLR)", Case Analysis (2022). Chamber Summons application dated 16th September 2021 (Reference). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2184/eng@2022-06-09

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