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ELCPartially AllowedPetition 23 of 2017· [2022] KEELC 12656 (KLR)

Bhavasar Anadkumar t/a Sarax Enterprises v Beloilco Holdings Limited & 3 others

Environment and Land Court at Malindi
27 September 2022
1,836 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed large instruction fee awards stand unless clearly wrong, but VAT cannot be charged on party-and-party legal costs.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Malindi determined a chamber summons dated January 31, 2022 filed by Messrs Koceyo & Company advocates, the applicant/advocate, seeking review of the taxing master's decision of January 26, 2022 on the 1st respondent's party and party bill of costs, which had been taxed at Kshs 3,589,341.40. The applicant sought reduction of the instruction fee (item No 1) from Kshs 3,000,000 to the basic Kshs 100,000 under Schedule 6(A) 1(J) of the Advocates Remuneration Order 2014, and setting aside of the certificate of taxation, contending that the increase was unjustified and that 16% VAT was wrongly awarded on a party and party bill. The 1st respondent opposed, maintaining the taxing master considered the nature, complexity, time and value of the matter. The court framed three issues: whether the increase of instruction fees was without reasons and justification, whether 16% VAT applies to party and party bills, and whether there was sufficient reason to interfere with the taxing master. Applying Mbogo v Shah, First American Bank v Shah, James v Nyeri Electricity and Joreth Ltd v Kigano & Associates, the court held the taxing master properly exercised her discretion in increasing the instruction fee and taxing off Kshs 5,000,000, finding no sufficient reason to interfere. However, following Pyramid Motors v Langata Gardens and Eddie J Amadi, the court held VAT is not applicable to party and party costs absent evidence the party paid VAT and was entitled to indemnity. The VAT award was set aside and the bill remitted to the taxing master for correction, with costs of the reference to the respondent.

Key legal issues

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01

Increase of instruction fees from Kshs 100,000 to Kshs 3,000,000

Holding

The increase was a proper exercise of the taxing master's judicial discretion given the nature and complexity of the defended constitutional petition; no sufficient reason to interfere.

Reasoning

The taxing master expressly indicated the basic fee for a defended constitutional petition was Kshs 100,000 but increased it due to the nature and complexity of the matter, taxing off Kshs 5,000,000. Applying Joreth Ltd v Kigano & Associates and First American Bank v Shah, discretion may only be interfered with where exercised capriciously, in abuse of correct principles, or where fees are excessive to the point of error in principle. None was established here.

p. 3
02

Award of 16% VAT on a party and party bill of costs

Holding

The taxing master erred; VAT is not applicable on party and party costs absent evidence that the party paid VAT and was entitled to indemnity. The VAT award was set aside.

Reasoning

Following Pyramid Motors v Langata Gardens and Eddie J Amadi v Titus O Koceyo, VAT does not apply to party and party bills because neither party supplies services to the other; costs are a reimbursement. VAT is awardable only on advocate-client bills or where tendered evidence shows the party paid VAT and is entitled to indemnity. The record contained no such evidence, so the award was an error of principle.

03

Whether the court should re-tax or remit the bill

Holding

The bill was remitted to the taxing master to correct the VAT anomaly, following the general practice in Steel Construction & Petroleum Engineering (EA) Ltd v Uganda Sugar Factory Ltd.

Reasoning

Relying on Spry JA in Steel Construction, where a fee must be re-assessed on different principles the proper course is generally to remit to the same or another taxing officer, the judge exercising jurisdictional discretion. Since only the VAT item was impugned and set aside, remittal for correction was the appropriate course rather than the court re-taxing the bill itself.

p. 4

Legal principles established

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  • A court will not interfere with a taxing officer's decision unless it is based on an error of principle or the fee awarded is so manifestly excessive as to indicate an error of principle
  • VAT is not applicable on a party and party bill of costs since no services are rendered by one party to the other

Court orders

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  1. 1.The award of 16% VAT by the taxing master is set aside
  2. 2.The bill of costs is remitted to the taxing master to correct the anomaly on the inclusion of 16% VAT
  3. 3.The costs of the reference to be borne by the respondent

Authorities

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Legislation

  • Advocates Remuneration OrderSchedule 6(A) 1(J); rule 11(2) and (4)
  • Advocates Act
  • Constitution of KenyaArticle 159
  • Civil Procedure RulesOrder 21 [1]

Cases cited (16)

  • Pyramid Motors Limited v Langata Gardens Limited
    [2015] eKLR

    VAT is not applicable on party and party bills of costs as neither party supplies services to the other

  • Amalo Company Limited v BN Kotecha & Sons Limited & another
    [2022] eKLR

    Concurrence that VAT is not allowable in a party and party bill of costs

  • Eddie J Amadi v Titus O Kucheyo
    HCCC No 257 of 2017 (Milimani)

    16% VAT not applicable where there were no taxable services

  • Republic v Minister for Agriculture & 2 others ex parte Samuel Muchiri W'Njuguna & 6 others
    [2006] eKLR

    Cited on principles governing increase of instruction fees

  • DK Law advocates v Zhong Gang Building Material Co Ltd & another
    [2021] eKLR

    Cited on unlawfulness of unjustified increase of instruction fees

  • Joreth Limited v Kigano & Associates
    Civil Appeal No 66 of 1999 [2002] 1EA 92

    Taxing master exercises judicial discretion, interferable with only if capricious or fees excessive amounting to error of principle

  • Jasbir Singh Rai & 3 others v Tarloacham Signh Rai & 4 others
    [2014] eKLR

    Cited on principles of taxation of costs

  • Kyalo Mbobu & Associates v Jacob Juma
    APP No 393 of 2011

    Reiterated principles of taxation set out in Premchand Reichand

  • Premchand Reichand v Quary Services of EA Ltd & others
    [1972] EA 162

    Principles of taxation of costs

  • Mbogo & Another v Shah
    [1968] EA p.15

    Appellate court will not interfere with exercise of discretion unless misdirected or clearly wrong

  • First American Bank of Kenya v Shah and others
    [2002] EALR 64

    Court cannot interfere with taxing officer's decision absent error of principle or manifestly excessive fee

  • James v Nyeri Electricity
    [1961] EA 492

    Court interferes only on error in principle; quantum is for the taxing officer

  • Haiders Bin Mohamed Elmandry and Others v Khadija Binti Ali Bin Salim
    (4) 1956, 23 EACA 313

    Example of excessive instruction fee indicating unjudicial or erroneous principles

  • Steel Construction & Petroleum Engineering (EA) Ltd v Uganda Sugar Factory Ltd
    [1970] EA 141

    General rule that re-assessment on different principles should be remitted to a taxing officer

  • D'Souza v Ferao
    [1960] EA 602

    Cited within Steel Construction quote on re-taxation practice

  • Arthur v Nyeri Electricity Undertaking
    [1961] EA 492

    Cited within Steel Construction quote on re-taxation practice

Jurisdiction invoked
Advocates Remuneration Order rule 11(2) and (4), Advocates Act, and article 159 of the Constitution of Kenya; inherent powers of the court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bhavasar Anadkumar t/a Sarax Enterprises v Beloilco Holdings Limited & 3 others", Case Analysis (2022). Petition 23 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/12656/eng@2022-09-27

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