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ELCPartially AllowedChamber Summons Application dated 19th January 2022· [2022] KEELC 3078 (KLR)

Munge v Munge (Civil Case 560 of 2014) [2022] KEELC 3078 (KLR)

Environment and Land Court
26 May 2022
3,102 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out Kshs 5 million legal fees because they were based on a property valuation done after the case ended, not on what the court papers actually said.

What this practically means

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Executive summary

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This was a reference by the applicant (plaintiff in a dismissed adverse possession suit) challenging the decision of the Taxing Master delivered on 12th March 2020 taxing the respondent's party and party bill of costs at Kshs 6,755,402, including instruction fees of Kshs 5,000,000 (item 1) and getting up fees of Kshs 1,666,667 (item 41). By chamber summons dated 19th January 2022, the applicant sought variation or setting aside of the taxation of those items, re-assessment by the court, or in the alternative remittal to a different taxing master. The applicant argued that the pleadings disclosed no value of the suit property, that the suit was dismissed without monetary award, and that the taxing master disregarded the Advocates Remuneration Order 2014 ingredients. The respondent defended the taxation as correct and argued no error of principle was shown. The court, holding that the applicable regime was the Advocates Remuneration Order 2014, found that subject matter value may be used only if evident from the pleadings, judgment or settlement; the respondent's post-judgment valuation report could not be relied on, and although disregarded expressly, it coloured the taxing master's mind. The taxing master also failed to apply the correct 'other matters' clause and its scale fee benchmark, rendering the instruction fees an error of principle, which in turn infected the getting up fees. Relying on established practice and authority, the court remitted items 1 and 41 for re-taxation by a taxing officer other than Hon I. N Barraza, with each party bearing its own costs of the reference.

Key legal issues

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01

Correct principle for assessment of instruction fees where pleadings state no value

Holding

The taxing master erred in principle by being influenced by a post-judgment valuation report and by failing to apply the correct 'other matters' clause of the Advocates Remuneration Order 2014; the award of Kshs 5,000,000 instruction fees was an error of principle.

Reasoning

The Advocates Remuneration Order 2014 permits reliance on subject matter value only where evident from the pleadings, judgment or settlement. The originating pleadings here stated no value, so the respondent's post-judgment valuation report could not be used. The taxing officer disregarded the report yet its value coloured the assessment, and the correct 'other matters' clause with its scale fee benchmark was not applied, rendering the award arbitrary and erroneous in principle.

p. 6
02

Whether the getting up fees fell with the instruction fees

Holding

Since the instruction fees were erroneous, the getting up fees (one third of instruction fees) were also erroneous.

Reasoning

Getting up fees are computed as one third of instruction fees; an error of principle in the instruction fees necessarily infects the consequential getting up fees, so item 41 was also liable to be set aside and remitted.

p. 6
03

Re-assessment by the court or remittal to a different taxing officer

Holding

The court remitted the impugned items for re-taxation by a taxing officer other than the original taxing master, with appropriate directions.

Reasoning

Although the court has jurisdiction to re-assess, established practice is to remit items to the same or another taxing officer where assessment must be redone on different principles. The court exercised its discretion in favour of remittal to a different taxing officer.

p. 7

Legal principles established

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  • The value of the subject matter can be used to ascertain instruction fees only if that value is evident from the pleadings, judgment or settlement between the parties; a post-judgment valuation cannot be relied upon.
  • Where pleadings do not disclose a value, instruction fees must be taxed under the 'other matters' clause of the Advocates Remuneration Order, with the scale fee serving as the benchmark before discretion is exercised.
  • Where a taxing master errs in principle, the judge should ordinarily remit the bill back for taxation by the same or another taxing officer with appropriate directions.

Court orders

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  1. 1.The Reference vide Chamber Summons Application dated the 19th January 2022 is allowed.
  2. 2.Items 1 and 41 of the bill of costs dated the 19th September 2019 are referred for re-assessment/taxation by a taxing officer other than Hon I. N Barraza, Principal Deputy Registrar of the Environment & Land Court, on a date to be fixed by the new Taxing Officer.
  3. 3.Each party to bear own costs of the reference.

Authorities

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Legislation

  • Advocates Remuneration Order, 2014Schedule 6 paragraph 1(a)
  • Advocates Remuneration Order, 2014Schedule 6 paragraph 1(b)
  • Advocates Remuneration Order, 2014Other Matters clause

Cases cited (7)

  • DK Law Advocates v Zhong Gang Building Material Co. Ltd & another
    [2021] eKLR
  • First American Bank of Kenya vs. Shah and Others
    [2002] 1 EA 64
  • Opa Pharmacy Ltd vs. Howse & Mcgeorge Ltd
    Kampala HCMA No. 13 of 1970 (HCU) [1972] EA 233
  • Construction & Petroleum Engineering (E.A.) Ltd vs. Uganda Sugar Factory Ltd
    (1970) E.A. 141
  • D'Souza v. Ferao
    [1960] EA 602
  • Arthur v. Nyeri Electricity Undertaking
    [1961] EA 492
  • Joreth Limited v Kigano & Associates
    [2002] eKLR
Jurisdiction invoked
Reference under the Advocates Remuneration Order against a Taxing Master's decision (chamber summons reference)

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, "Munge v Munge (Civil Case 560 of 2014) [2022] KEELC 3078 (KLR)", Case Analysis (2022). Chamber Summons Application dated 19th January 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3078/eng@2022-05-26

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