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ELCDismissedNot stated in the judgment· [2022] KEELC 3558 (KLR)

Kariuki & 2 others (Suing as the chairman, secretary and treasurer as representatives of the members of Komarock Spine Road Association) v Muthithi Investments Limited (Environment & Land Case 548 of 2018) [2022] KEELC 3558 (KLR)

Environment and Land Court
12 May 2022
LMLucy N. Mbugua
696 words in judgment
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The bottom line

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The Environment and Land Court dismissed a challenge to a Kshs 13 million taxation award, confirming courts rarely disturb a taxing master's fee decision without proof of an error of principle.

What this practically means

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Executive summary

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The underlying suit, an adverse possession claim over LR No 23917 (IR No 87206/1) in Embakasi, Nairobi, was withdrawn on September 24, 2019 with costs to the Defendant. The Defendant's party and party bill of costs was taxed on August 10, 2021 at Kshs 13,034,255. The 1st Plaintiff filed an application dated September 7, 2021 seeking to set aside or review the Taxing Master's (Hon I N Barasa) decision on item No. 1 (instruction fees) as excessive, and to have the bill taxed afresh by the court or a different taxing master. The Applicant contended he never issued instructions for the filing of the suit, that it never went to pre-trial, and that as a representative suit for hundreds of residents it was unfair to condemn only three parties. The Defendant countered that no error of principle was shown, that taxation is discretionary, and that the Defendant had produced a valuation report while the Applicant offered no different valuation. Applying the Court of Appeal's guidance in Peter Muthoka v Ochieng that the High Court on a reference is slow to interfere with a taxing master's discretion absent error on settled principles, the court found the taxing master had properly considered numerous factors including the property's size (8.143 hectares, 543 plots) and location, the withdrawal of the suit, and the award of costs. The claim of want of instructions was unsupported by tangible evidence, and any such grievance lay with the advocates' disciplinary bodies. The application was dismissed with costs to the Defendant on May 12, 2022.

Key legal issues

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01

Whether the taxing master's award of instruction fees was excessive and amenable to disturbance on a reference

Holding

The award was not disturbed; no compelling reason or error of principle was demonstrated

Reasoning

The court noted the many factors the taxing master considered, including the location and size of the suit property (8.143 hectares divided into 543 plots), the nature of the adverse possession claim, the award of costs to the Defendant upon withdrawal, and the absence of a counter valuation or tangible evidence from the Applicant. Taxation quantum lies within the taxing master's discretion, and the court on reference is slow to interfere.

p. 2
02

Whether the 1st Plaintiff's claim that he never instructed the advocates to file the suit justified review

Holding

The claim failed for lack of tangible evidence; any grievance against advocates lies with disciplinary bodies

Reasoning

The Applicant averred he never issued instructions for the filing of the suit, but produced only a general denial without tangible evidence. The court held that even if the complaint were substantiated, the Applicant would be at liberty to pursue the matter with the relevant disciplinary bodies of the advocates; this did not furnish a ground for disturbing the taxation.

p. 2

Legal principles established

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  • Quantum of taxation falls within the discretion of the taxing master and the High Court on a reference will be slow to interfere absent an error of principle
  • A party alleging absence of instructions to advocates must adduce tangible evidence of that claim; otherwise the remedy lies with the advocates' disciplinary bodies

Court orders

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  1. 1.The application dated September 7, 2021 is dismissed with costs to the Defendant

Authorities

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Cases cited (2)

  • Peter Muthoka & Another v Ochieng & 3 Others
    (2019) eKLR
  • Joreth Limited v Kigano of Associate
    (2002) eKLR
Jurisdiction invoked
Not expressly stated; the court entertained a reference/review of the Taxing Master's decision on a party and party bill of costs

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, "Kariuki & 2 others (Suing as the chairman, secretary and treasurer as representatives of the members of Komarock Spine Road Association) v Muthithi Investments Limited (Environment & Land Case 548 of 2018) [2022] KEELC 3558 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3558/eng@2022-05-12

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