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ELCDismissedEnvironment and Land Miscellaneous Application E010 of 2022· [2022] KEELC 14642 (KLR)

Oloo v Yatoyi & 2 others

Environment and Land Court
8 November 2022
DOD. O. Ohungo
1,505 words in judgment
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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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The applicant, Anthony Okello Oloo, moved the Environment and Land Court at Kakamega by Chamber Summons dated March 28, 2022 seeking to set aside a Taxing Master's ruling of March 16, 2022 and to have the respondents' three bills of costs taxed afresh. The bills arose after his Notice of Motion in Mumias SPM Misc. MELC No. 6 of 2021 was dismissed with costs by W K Cheruiyot (SRM) on December 3, 2021; each bill was assessed at an all-inclusive sum of KShs 52,575. The applicant argued he was condemned unheard, as taxation occurred one day after service contrary to Order 51 Rule 13(3) of the Civil Procedure Rules, and that instruction fees should have been pegged at KShs 3,000 under Schedule 7(A)(5) of the Advocates Remuneration Order because the proceedings were commenced by Notice of Motion rather than a suit. The respondents opposed, contending the application was incompetent and that there can be no stay of costs. Ohungo J dismissed the application. First, the complaint about notice of taxation should have been raised in the subordinate court through an application to set aside ex parte proceedings, not in the first instance before this court. Second, the Notice of Motion originated the cause of action and was therefore a 'suit' under Section 2 of the Civil Procedure Act, so instruction fees fell under Schedule 7 Part A Paragraph 2 (KShs 20,000-50,000). Considering other bill headings, the all-inclusive assessment of KShs 52,575 across the three identical bills was reasonable and the magistrate's discretion was correctly exercised. The Chamber Summons was dismissed with no order on costs.

Key legal issues

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01

Whether the applicant was condemned unheard due to defective notice of taxation

Holding

The point was not open on this reference; it should have been raised in the subordinate court by way of an application to set aside ex parte proceedings

Reasoning

The court held that allegations of inadequate notice of taxation concern the validity of ex parte proceedings before the taxing magistrate and must be addressed there by an appropriate application, not raised for the first time in a reference to the superior court.

p. 3
02

Whether instruction fees should have been pegged at KShs 3,000 as fees on a motion

Holding

No - the Notice of Motion originated the cause of action and was therefore a 'suit', attracting Schedule 7 Part A Paragraph 2 (KShs 20,000-50,000)

Reasoning

Schedule 7 Part A Paragraph 5 applies only to motions arising within an existing suit. The Motion of May 12, 2021 originated a cause of action and fell within the definition of 'suit' in Section 2 of the Civil Procedure Act, so the higher instruction fee schedule applied.

p. 3
03

Whether the assessed quantum of KShs 52,575 was excessive

Holding

No - the magistrate had discretion to award between KShs 20,000 and KShs 50,000 as instruction fees, and with other headings the all-inclusive sum was reasonable

Reasoning

The ruling of December 3, 2021 conclusively determined the Motion and was akin to a judgment. Considering other bill headings such as court attendances, the all-inclusive assessment across three identical bills was reasonable and the discretion was correctly exercised.

p. 3

Legal principles established

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  • A Notice of Motion that originates a cause of action is a 'suit' under Section 2 of the Civil Procedure Act, so instruction fees fall under Schedule 7 Part A Paragraph 2 of the Advocates Remuneration Order, not the KShs 3,000 motion fee
  • A complaint about lack of notice of taxation cannot be raised for the first time on a reference to the High Court; it must be raised in the subordinate court

Court orders

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  1. 1.Chamber Summons dated March 28, 2022 dismissed
  2. 2.No order on costs

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 51 Rule 13(3)
  • Civil Procedure Rules 2010Order 3(1)
  • Civil Procedure ActSection 2
  • Advocates Remuneration OrderSchedule 7 Part A Paragraph 5
  • Advocates Remuneration OrderSchedule 7 Part A Paragraph 2

Cases cited (2)

  • Bernard Gichobi Njira v Kanini Njira Kathendu & another
    [2015] eKLR

    That the correct terminology in the subordinate court is assessment of costs, not taxation

  • Francis Kabaa vs. Nancy Wambui & Jane Wanjiru
    Civil Application No 298 of 1996

    Relied on by respondents for the proposition that there can be no stay in respect of costs

On appeal from
Senior Resident Magistrate's Court at Mumias
Mumias SPM Misc. MELC No. 6 of 2021
Jurisdiction invoked
Reference against a Taxing Master's ruling under the Advocates Remuneration Order; supervisory jurisdiction of the Environment and Land Court over subordinate court taxation

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, "Oloo v Yatoyi & 2 others", Case Analysis (2022). Environment and Land Miscellaneous Application E010 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14642/eng@2022-11-08

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