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ELCPartially AllowedChamber Summons application dated August 12, 2021 (reference from taxation in Nakuru ELC No. 124 of 2014)· [2022] KEELC 2791 (KLR)

Mirugi Kariuki & Co Advocates v Kahungura & another (Environment and Land Miscellaneous Application 11 of 2021) [2022] KEELC 2791 (KLR)

Environment and Land Court
6 July 2022
3,142 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court found a taxing officer used the wrong fee schedule and re-taxed the advocate's bill higher itself, to about Kshs 1.3 million.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Nakuru (Mwangi Njoroge, J) on a Chamber Summons dated August 12, 2021 by which the applicant, an advocate, sought to set aside a taxing officer's ruling of August 3, 2021 taxing his Advocate/Client Bill of Costs (drawn at Kshs 10,420,616) at Kshs 1,037,582.78, and sought re-taxation or remission to a different taxing officer. The bill arose from Nakuru ELC No. 124 of 2014, a trespass suit in which the plaintiff obtained a permanent injunction, Kshs 8,037,309.88 in special damages and Kshs 500,000 in general damages. The applicant argued the taxing master should have used the value of the subject land (alleged at Kshs 280 million), while the respondents maintained the lower court's damages determined value and proposed re-taxation under Rule 58. The court examined the challenged attendance items against the court record, upholding items 21, 22 and 23 but striking off items 4, 5, 10, 20, 25 and 28 as the matter was not in court on those dates. It held that the taxing master erred in principle by applying Schedule 6(1)(a) rather than Schedule 6(1)(b) in a defended suit, valued the subject matter at Kshs 8,537,309.88 (the sums awarded, not the land value), and recomputed instruction fees at Kshs 600,000 with getting up fees of Kshs 200,000. It refused separate fees from each respondent and declined re-taxation under Rule 58. Rather than remit the bill, the court re-taxed it itself at a global sum of Kshs 1,308,316.50, directed the Deputy Registrar to issue a certificate, and ordered each party to bear their own costs of the reference.

Key legal issues

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01

Erroneous schedule applied in computing instruction fees

Holding

The taxing master erred in principle by relying on Schedule 6(1)(a) instead of Schedule 6(1)(b) in a defended suit

Reasoning

The suit was defended and, per the Advocates (Remuneration) Order, instruction fees in defended matters fall under paragraph 1(b) of Schedule 6, calculated on the first Kshs 1,000,000 plus 2% of the balance. The court recomputed the fee at Kshs 390,746.20 and, considering work done and time spent, increased it to Kshs 600,000/=, with getting up fees at one third.

p. 5
02

Value of the subject matter in a trespass claim

Holding

The value of the subject matter was the sum awarded (Kshs 8,537,309.88), not the alleged land value of Kshs 280,000,000

Reasoning

The applicant argued the value was the land's current valuation of Kshs 280 million. The court held the value of the subject matter in a trespass suit is ascertainable from the claim and award, not the land's market value; the land value neither featured in nor was ascertainable from the pleadings.

p. 5
03

Court attendance fees for dates when the matter was not in court

Holding

Items 4, 5, 10, 20, 25 and 28 were undeserved as the matter was not before court on those dates; items 21, 22 and 23 were taxable at Kshs 1,100 each

Reasoning

The court scrutinised the court proceedings for each challenged attendance date. Where the record showed the matter was not listed, the attendance fee was undeserved and taxed off. Where the record confirmed mention on the stated dates, the fee of Kshs 1,100 under paragraph 7 of Schedule 6 was properly awarded.

p. 4

Legal principles established

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  • Where a defended suit is involved, the taxing master should apply Schedule 6 paragraph 1(b) rather than 1(a) in assessing instruction fees
  • In a trespass suit, the value of the subject matter for instruction fees is the sum awarded, not the value of the land
  • Costs for preparation of separate pleadings for multiple parties are not separately payable where interests were not severed

Court orders

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  1. 1.The applicant's application dated August 12, 2021 is allowed
  2. 2.Instruction fees of Kshs 400,000/= substituted with Kshs 600,000/=
  3. 3.Getting up fees of Kshs 133,333/= substituted with Kshs 200,000/=
  4. 4.VAT on instruction fees at 16% fixed at Kshs 96,000/=
  5. 5.Items No's 4, 5, 10, 20, 25 and 28 collectively taxed off at Kshs 6,600/=
  6. 6.All other items to remain as taxed by the taxing master
  7. 7.Bill of costs re-taxed globally at Kshs 1,308,316.50 and the Deputy Registrar to issue a certificate accordingly
  8. 8.Each party to bear their own costs of the instant reference

Authorities

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Legislation

  • Advocates ActSection 48
  • Advocates (Remuneration) Order, 1962General
  • Advocates (Remuneration) Order 2014Schedule 6, Part A paragraph 1(b)
  • Advocates Remuneration OrderSchedule 6 paragraph 7
  • Advocates Remuneration OrderSchedule 6 paragraph 2
  • Advocates Remuneration OrderRule 58

Cases cited (4)

  • Kipkorir, Tito and Kiara Advocates vs Deposit Protection Fund Board
    [2005] eKLR
  • First American Bank Ltd vs Shah & another
    [2002] 1 EA 64
  • Joseph Mumali Wanga vs Blessed TC World Class Spares Limited
    [2021] eKLR
  • Nguruman (case cited by the applicant, referred to as 'Nguruman, (supra)')
Jurisdiction invoked
Reference against a taxing officer's decision under the Advocates Act and the Advocates (Remuneration) Order

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, "Mirugi Kariuki & Co Advocates v Kahungura & another (Environment and Land Miscellaneous Application 11 of 2021) [2022] KEELC 2791 (KLR)", Case Analysis (2022). Chamber Summons application dated August 12, 2021 (reference from taxation in Nakuru ELC No. 124 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2791/eng@2022-07-06

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