Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment· [2022] KEELC 2534 (KLR)

Adega & 2 others v Kibos Sugar and Allied Industries Ltd & 4 others; Kenya Union of Sugar Plantation and Allied Workers (Interested Party) (Petition 8 of 2018) [2022] KEELC 2534 (KLR)

High Court of Kenya
15 July 2022
2,926 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

Kenya's High Court more than quadrupled a lawyer's fee award after finding the Taxing Master ignored the case's complexity and massive value.

What this practically means

#

Executive summary

#
Kibos Distillers Limited, the 3rd respondent in an environmental petition, filed a reference against a Taxing Master's ruling of November 4, 2021 which taxed its party-and-party bill of costs (claimed at Kshs. 71,470,476.12, including instruction fees of Kshs. 45,000,000) at only Kshs. 4,344,567, with instruction fees of Kshs. 3,000,000. The applicant sought that the taxation be set aside wholly and re-taxed, or remitted, arguing the bill was never properly taxed, that the award was so low as to constitute an error in principle, and that the Taxing Master failed to consider the complexity, value and weight of the underlying petition, which had sought restitution of land, demolition of the factory, closure orders and Kshs. 100,000,000 compensation, with a subject matter valued in excess of Kshs. 6 billion. The court held the reference competent since reasons sought from the Taxing Master were not furnished. Applying First American Bank v Shah and Muchiri W'Njuguna, it found jurisdiction to interfere where an award is inordinately high or low. It held the Taxing Master fell into error by ignoring the compensation claim, restitution and complexity, but rejected the Kshs. 45,000,000 instruction fee claim as excessive and likely to discourage public-interest litigation. The court fixed instruction fees at Kshs. 12,000,000 with getting-up fees of one third, taxing items 1 and 2 at Kshs. 16,000,000, and awarded costs of the reference to the applicant. Judgment delivered at Kisumu on July 15, 2022 by Antony Ombwayo J.

Key legal issues

#
01

Competence of the reference without formal reasons from the Taxing Master

Holding

The reference was competent because reasons were sought but not furnished and were discerned from other sources

Reasoning

The applicant wrote to the Taxing Master on November 18, 2021 seeking reasons for the taxation. None was forthcoming; the applicant instead learned from an annexure in the 4th Respondent's reference that the Taxing Master considered the reasons were in the ruling itself. The court held this made the reference properly before it.

p. 4
02

Whether the award of Kshs. 3,000,000 instruction fees amounted to an error of principle

Holding

Yes; the Taxing Master failed to consider the Kshs. 100,000,000 compensation claim, restitution and complexity, and arrived at the wrong amount

Reasoning

The court applied the First American Bank and Muchiri W'Njuguna tests for interference with taxation. The bill arose from a constitutional petition seeking demolition of a factory, restitution and Kshs. 100,000,000 compensation, with a subject matter valued at over Kshs. 6 billion. Omitting these relevant factors was an error of principle warranting the court's substitution of its own figure.

p. 7
03

Appropriate instruction fees for defending the petition

Holding

Kshs. 12,000,000 instruction fees plus getting up fees of one third, items 1 and 2 taxed at Kshs. 16,000,000

Reasoning

The court weighed the magnitude and complexity of the petition, which threatened closure of a factory with an investment in excess of Kshs. 6 billion, against the danger of excessive awards deterring public-interest litigation. It rejected the applicant's Kshs. 45,000,000 claim as excessive and fixed instruction fees at Kshs. 12,000,000 with getting-up fees of one third.

p. 7

Legal principles established

#
  • A court may interfere with a taxing officer's decision where the fee awarded is so manifestly high or low as to amount to an injustice or to indicate an error of principle
  • Interference is warranted where the taxing officer omitted to take into account relevant factors such as the value of the subject matter, compensation sought and complexity of the matter

Court orders

#
  1. 1.Item 1 (instruction fees) taxed at Kshs. 12,000,000 with advocates getting up fees being 1/3 of the instruction fees
  2. 2.Items 1 and 2 taxed at Kshs. 16,000,000
  3. 3.Costs of the reference to the applicant

Authorities

#

Legislation

  • Advocates Remuneration OrderSchedule 6, Part A, Paragraph 1(j) and 1(j)(ii)
  • Advocates Remuneration Order 2014Schedule 6(A) Party and Party costs, paragraph 1(b)

Cases cited (4)

  • Thomas James Arthur v. Nyeri Electricity Undertaking
    [1961] E.A 492
  • Republic versus Ministry for Agriculture Ex parte Samuel Muchiri W'njuguna & 6 others
    (2006) eKLR
  • First American Bank Ltd v Shah & Another
    [2002] 1 EA 64
  • Republic vs Ministry of Agriculture & 20 Others Ex-parte Muchiri W' Njuguna
    [2006] eKLR
Jurisdiction invoked
Reference from a Taxing Master's decision under the Advocates Remuneration Order 2014; court's supervisory jurisdiction over taxation

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Adega & 2 others v Kibos Sugar and Allied Industries Ltd & 4 others; Kenya Union of Sugar Plantation and Allied Workers (Interested Party) (Petition 8 of 2018) [2022] KEELC 2534 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2534/eng@2022-07-15

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