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ELCDismissedEnvironment & Land Case 114 of 2020· [2022] KEELC 13599 (KLR)

Swing Limited v Attorney General (Sued on behalf of the Kenya Meteorological Department) & 2 others

Environment and Land Court
13 October 2022
1,804 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling by LN Mbugua J of the Environment and Land Court at Nairobi determines a reference by the plaintiff, Swing Limited, objecting to the taxing officer's ruling of May 10, 2022. The taxing officer had allowed the 2nd defendant's (National Housing Corporation's) party and party bill of costs following the striking out of the suit against it on November 25, 2021. The applicant sought variation or setting aside of the ruling in respect of items 1, 4, 6, 8, 10, 18, 25, 29 and 31, contending that the instruction fee of Kshs 1,400,000 was grossly excessive because the value of the suit property was not pleaded in the plaint and the suit was withdrawn at the preliminary stage; it urged assessment at Kshs 75,000 and a 75% reduction under schedule 6 paragraph 1(b) of the Advocates Remuneration Order, 2014. It also objected that the respondent made no copies for physical service during the Covid-19 pandemic. The respondent maintained that fees were drawn to scale based on the Kshs 110,000,000 purchase price in a sale agreement among the applicant's documents, and that copies were made for filing and service. The court applied Joreth Ltd v Kigano, Peter Muthoka v Ochieng and Kipkorir Titoo & Kiara Advocates, holding that since the value was not discernible from the pleadings, the taxing master properly exercised her discretion and considered relevant factors, including the withdrawal at the preliminary stage. The Covid-19 service contention was found unfounded as the physical court file contained documents filed during the pandemic. The reference was dismissed with costs to the 2nd defendant.

Key legal issues

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01

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

Holding

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

Reasoning

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.

p. 3
02

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

Holding

Effectively rejected; the taxing master expressly considered that the suit against the 2nd defendant was withdrawn at the preliminary stages in fixing the fee

Reasoning

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.

p. 3
03

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

Holding

Rejected; the court's physical file contains documents filed during the pandemic, showing filing and service continued

Reasoning

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

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  • 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

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  1. 1.The application dated June 21, 2022 is dismissed
  2. 2.Costs of the reference awarded to the 2nd defendant

Authorities

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Legislation

  • Advocates Remuneration Order, 2014Schedule 6 paragraph 1(ii); Schedule 6 paragraph 1(b)

Cases cited (10)

  • Evans M Gakuu & 66 others vs National Bank of Kenya Ltd & 8 others
    (2013) eKLR
  • Republic v Minister for Agriculture & 2 others Ex-parte Samuel Muchiri W'Njuguna & 6 others
    [2006] eKLR
  • First American Bank of Kenya Ltd v Gulab P Shah & 2 others
    [2002] eKLR
  • Eddy Nicholas O Orinda p/a One and Associates Advocates vs Victoria Commercial Bank Limited
    [2020] eKLR
  • Chandaria v Njeri
    [1982] eKLR
  • Masore Nyang'au & Co Advocates v Kensalt Limited
    [2019] eKLR
  • Shiva Enterprises v Mwangi Njenga & Company Advocates
    [2020] eKLR
  • Joreth Ltd vs Kigano & Associates
    [2002] 1 EA 92

    Value of subject matter for taxation is determined from pleadings, judgment or settlement; otherwise taxing officer's discretion

  • Peter Muthoka & another vs Ochieng & 3 others
    [2019] eKLR

    Discretionary assessment of instruction fees only where value not discernible from pleadings, judgment or settlement

  • Kipkorir Titoo & Kiara Advocates vs Deposit Protection Fund
    Civil Appeal No 220 of 2004 [2005]1 KLR 528

    Judge will not interfere with taxing officer's discretion absent error in principle

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

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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, "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.