Muriu v Nyongesa
The bottom line
#Kenya's Environment and Land Court upheld a taxed costs award, ruling that challenging a taxing officer requires proving an error of principle, not just disagreement.
What this practically means
#Executive summary
#Key legal issues
#Mode of bringing the reference (Notice of Motion vs Chamber Summons)
The mode of filing does not touch the substance of the dispute; the objection was dismissed in line with Article 159(2)(d) of the Constitution
Relying on Gori, Ombongi & Company Advocates v Mary Wangechi Kamara and Susan K Baur v Shashikant Shamji Shah, the court held the distinction between Chamber Summons and Notice of Motion is blurred and a mislabel is a matter of form, not substance. Procedural technicalities should not defeat substantive justice under Article 159(2)(d).
Entitlement to Getting Up fees where the appeal was withdrawn before hearing
Getting Up fees were properly awarded given the respondent's participation in interlocutory applications, a preliminary objection and a cross-appeal
Although the Advocates Remuneration Order contemplates Getting Up fees where a respondent appears at the hearing of an appeal certified as proper, the court found the respondent's substantial work - opposing an interlocutory application, filing a preliminary objection and a cross-appeal, after which the appeal was withdrawn - justified the award and declined to interfere.
Award of VAT on party and party costs
VAT is properly chargeable where the successful litigant was represented by counsel
Following Kenya Commercial Bank v Stagecoach Management Limited, the court reasoned that costs enable a successful litigant to recoup expenses, including VAT paid to an advocate. Since the respondent was represented by counsel and there was no argument that counsel was unregistered for VAT, the Taxing Officer's award could not be faulted.
Recoverability of perusal fees
Perusal fees are recoverable under Schedule 6 Paragraph 8(a) of the Advocates Remuneration Order, 2014
The court cited Schedule 6 Paragraph 8(a), which provides for per-folio charges for perusal of pleadings, memoranda of appeal, records of appeal, affidavits and other necessary documents, and held the respondent was entitled to perusal fees and the Taxing Officer did not err.
Whether the Taxing Officer erred in principle
No error of principle was demonstrated; the appellant was merely dissatisfied with the exercise of discretion
Applying the Muchiri W'Njuguna standard, the court found the taxed amounts were as per the scale and the appellant failed to identify errors. Disagreement with how the Taxing Officer exercised her discretion is not an error of principle warranting interference.
Legal principles established
#- A court cannot interfere with a taxing officer's decision unless it is shown the decision was based on an error of principle or the fee awarded was manifestly excessive
- The form of an application (Notice of Motion vs Chamber Summons) is a matter of form not substance and does not render it fatally defective
- Decisions of the High Court are not binding on the Environment and Land Court but are merely persuasive
- VAT is chargeable on party and party costs where the successful litigant was represented by counsel
Court orders
#- 1.The appellant's notice of motion application dated April 5, 2022 is dismissed with costs
- 2.The determination of the Taxing Officer dated March 9, 2022 on Getting Up fees, VAT and perusal fees is upheld
- On appeal from
- Deputy Registrar (Taxing Officer), Machakos
- Jurisdiction invoked
- Appellate/review jurisdiction of the Environment and Land Court over a reference against a Taxing Officer's decision under the Advocates Remuneration Order, 2014
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muriu v Nyongesa", Case Analysis (2022). Environment and Land Appeal 11 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15303/eng@2022-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.