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ELCDismissedEnvironment and Land Appeal 11 of 2019· [2022] KEELC 15303 (KLR)

Muriu v Nyongesa

Environment and Land Court
5 December 2022
2,136 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Machakos (Christine Ochieng, J) determined the appellant's notice of motion dated April 5, 2022 seeking to set aside the Taxing Officer's decision of March 9, 2022 and to have the respondent's party and party bill of costs dated March 3, 2021 taxed afresh. The underlying appeal had been withdrawn with costs to the respondent, who then taxed a bill claiming Kshs.809,273.63; the Taxing Officer awarded Kshs.206,847.00. The appellant objected on three grounds: award of Getting Up fees despite the appeal not proceeding to hearing, award of VAT contrary to High Court decisions, and award of perusal fees said to be covered by instruction fees. The respondent opposed, contending the application was incompetent as it was brought by Notice of Motion rather than Chamber Summons, and that the Taxing Officer was correct. The court first rejected the competency objection, holding that the choice of Notice of Motion versus Chamber Summons is a matter of form not substance, consistent with Article 159(2)(d) on substantive justice. On the merits, the court upheld all three contested awards: Getting Up fees were justified by the respondent's participation in interlocutory proceedings, a preliminary objection and a cross-appeal; VAT was properly chargeable since the successful litigant was represented by counsel, High Court decisions being merely persuasive in the ELC; and perusal fees were expressly provided for under Schedule 6 Paragraph 8(a) of the Advocates Remuneration Order, 2014. Applying the Muchiri W'Njuguna standard, the court found no error of principle and dismissed the application with costs.

Key legal issues

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01

Mode of bringing the reference (Notice of Motion vs Chamber Summons)

Holding

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

Reasoning

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).

02

Entitlement to Getting Up fees where the appeal was withdrawn before hearing

Holding

Getting Up fees were properly awarded given the respondent's participation in interlocutory applications, a preliminary objection and a cross-appeal

Reasoning

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.

p. 3
03

Award of VAT on party and party costs

Holding

VAT is properly chargeable where the successful litigant was represented by counsel

Reasoning

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.

p. 4
04

Recoverability of perusal fees

Holding

Perusal fees are recoverable under Schedule 6 Paragraph 8(a) of the Advocates Remuneration Order, 2014

Reasoning

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.

05

Whether the Taxing Officer erred in principle

Holding

No error of principle was demonstrated; the appellant was merely dissatisfied with the exercise of discretion

Reasoning

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

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  • 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

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  1. 1.The appellant's notice of motion application dated April 5, 2022 is dismissed with costs
  2. 2.The determination of the Taxing Officer dated March 9, 2022 on Getting Up fees, VAT and perusal fees is upheld

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Advocates Remuneration Order, 2014Schedule 6 (Getting Up fees provision); Schedule 6 Paragraph 8(a)
  • Value Added Tax ActSection 5

Cases cited (6)

  • Gori, Ombongi & Company Advocates v Mary Wangechi Kamara
    (2022) eKLR

    That it is immaterial whether an application is brought by Chamber Summons or Notice of Motion

  • Susan K Baur v Shashikant Shamji Shah & another
    [2011] eKLR

    Difference between Chamber Summons and Notice of Motion is blurred; mislabelling is form not substance

  • Paramount Bank Limited vs Naqvi Syed Qamar
    (2021) eKLR

    Appellant's authority that VAT is not payable on a party and party bill of costs

  • Kenya Commercial Bank Limited v Stagecoach Management Limited
    [2017] eKLR

    VAT is properly chargeable on party and party costs where services are rendered by counsel

  • Jasbir Singh Rai (supra)

    Costs are a means by which a successful litigant recoups amounts expended in fighting a case

  • Republic v Ministry of Agriculture and 2 others: Exparte Muchiri W'Njuguna & others
    (2006) eKLR

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

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

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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, "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.