Swing Limited v Attorney General (Sued on behalf of the Kenya Meteorological Department) & 2 others
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the taxing officer erred in principle in awarding instruction fees of Kshs 1,400,000 where the value of the suit property was not pleaded in the plaint
No error of principle; the value was not discernible from the pleadings, so the taxing master properly exercised discretion considering the nature of the suit, the property and the parties' interests
The court applied Joreth Ltd v Kigano and Peter Muthoka: instruction fees are pegged to value only where discernible from pleadings, judgment or settlement. Here the value was not discernible from the pleadings, so the taxing master was entitled to exercise discretion. Her ruling showed she considered the nature of the suit, the prayers, the suit property, the parties' interests, attendances and the withdrawal at preliminary stages, so no error of principle was demonstrated.
Whether the taxing officer erred in failing to reduce fees to 75% under schedule 6 paragraph 1(b) of the Advocates Remuneration Order, 2014 given summary determination
Effectively rejected; the taxing master expressly considered that the suit against the 2nd defendant was withdrawn at the preliminary stages in fixing the fee
The applicant argued the suit was withdrawn at the preliminary stage so fees should be reduced to 75%. The court noted the taxing master's ruling expressly recorded that she considered the fact that the suit against the 2nd defendant was withdrawn at the preliminary stages before fixing Kshs 1,400,000 as fair and reasonable, and found all relevant factors were taken into account.
Whether items 4, 6, 8, 10, 18, 25, 29 and 31 were wrongly allowed where the respondent allegedly made no copies for physical service during Covid-19
Rejected; the court's physical file contains documents filed during the pandemic, showing filing and service continued
The applicant contended no copies were served because physical service was halted during Covid-19. The court found the contention unfounded because the court's physical file contains documents filed during the pandemic period, demonstrating that filing and service of documents continued despite the pandemic restrictions.
Legal principles established
#- A judge on a reference will not interfere with a taxing officer's discretion unless the taxing officer erred in principle, e.g. where costs are so manifestly excessive as to show erroneous principles
- Value of subject matter for taxation is determined from pleadings, judgment or settlement; only if not ascertainable may the taxing officer exercise discretion to assess a just instruction fee
Court orders
#- 1.The application dated June 21, 2022 is dismissed
- 2.Costs of the reference awarded to the 2nd defendant
- Jurisdiction invoked
- Reference from a taxing officer's ruling under the Advocates Remuneration Order, 2014; court's inherent jurisdiction invoked by the applicant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Swing Limited v Attorney General (Sued on behalf of the Kenya Meteorological Department) & 2 others", Case Analysis (2022). Environment & Land Case 114 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13599/eng@2022-10-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.