Njeri v Kenya Commercial Bank Limited & another (Environment & Land Case E10 of 2020) [2022] KEELC 2840 (KLR)
The bottom line
#The Environment and Land Court in Nakuru dismissed a challenge to a taxing officer's decision, confirming that courts rarely disturb costs rulings unless an error of principle is proven.
What this practically means
#Executive summary
#Key legal issues
#Competency of the reference for want of a Notice of Objection to Taxation under paragraph 11(1) of the Advocates (Remuneration) Order
The letter dated 5/10/2021, though not specifying the impugned items, was sufficient compliance with Rule 11; the reference was competent
Rule 11 does not specify the format of the notice of objection. The taxing master had already given reasons in her ruling of 29/9/2021 and was functus officio. The letter was written within 14 days and no prejudice was occasioned to the respondent. Article 159(2)(d) elevates substantive justice over technicalities, drawing on the Lubullela decision.
Whether the taxing master erred in principle in taxing instruction fees at Kshs. 100,000/= without ascertaining the value of the subject matter
No error of principle; the value was not ascertainable and the taxing master properly exercised her discretion under Schedule 6 'other matters'
Although the plaintiff pleaded the property value as Kshs. 35,000,000/=, a holistic reading showed this was a contrast with the disposal value; the suit never went to full hearing and the dispute concerned the propriety of a statutory power of sale, not title. The prayer sought declarations and injunction, so the pleaded value was not ascertainable for taxation purposes.
Whether the taxing master erred in taxing court attendance items 42-45 at Kshs. 1,100 each instead of Kshs. 3,000 under the higher scale
The taxing officer correctly applied the lower scale; under paragraph 50 of the ARO, where both scales exist the lower scale applies absent an order under paragraph 50A
Paragraph 50 of the ARO mandates that where Schedule 6 provides a higher and lower scale, costs are taxed on the lower scale unless the court orders otherwise under paragraph 50A. No such election or order existed. The taxing officer found each session took less than half an hour, justifying the lower scale.
Legal principles established
#- A court cannot interfere with a taxing officer's decision unless an error of principle or manifestly excessive fee is shown
- The value of the subject matter for taxation is determined from the pleadings, judgment or settlement; if not ascertainable, the taxing officer may exercise discretion
- Rule 11 of the Advocates (Remuneration) Order does not prescribe a format for the notice of objection; a letter may suffice
- Substantive justice prevails over technicalities under Article 159(2)(d)
Court orders
#- 1.The applicant's Chamber Summons application dated 13/10/2021 is dismissed
- 2.Costs of the application awarded to the respondent (plaintiff)
- Jurisdiction invoked
- Paragraph 11 of the Advocates (Remuneration) Order - reference to a judge against a taxing officer's decision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njeri v Kenya Commercial Bank Limited & another (Environment & Land Case E10 of 2020) [2022] KEELC 2840 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2840/eng@2022-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.