Gituthi & 2 others v National Land Commission & another
The bottom line
#A Kenyan court ruled lawyers challenging a Kshs 8.3 million fee award could not claim fees based on the Kshs 23.4 billion project value.
What this practically means
#Executive summary
#Key legal issues
#Value of the subject matter for instruction fees
The subject matter was the wayleave over the petitioners' land, not the Kshs 23.4 billion Northern Collector Tunnel project; the taxing officer correctly applied her mind
The court adopted Joreth Ltd v Kigano & Associates on determining value from pleadings, judgment or settlement. Persuaded by Muriu Mungai v China Civil Engineering and the Kipkorir, Titoo & Kiara case, it held that in a wayleave dispute the property sought to be protected is the wayleave, not the respondent's entire investment, even though failure of the dispute could have endangered the project.
Complexity and novelty of the matter
The procedure for creation of wayleaves is clearly defined in law, so the matter was neither novel nor complex
Relying on Machareus Obaga Anunda v Kenya Electricity Transmission Co Ltd, the court set out the statutory procedure under the Land Act for acquiring a wayleave and concluded that because the procedure is clearly provided for, the petition could not be described as novel or complex so as to justify enhanced fees.
Applicable remuneration schedule
The petition, being a constitutional matter on the legality of compulsory acquisition of wayleaves, fell under Schedule 6A (j)(ii) of the Advocates Remuneration Order with a minimum fee of Kshs 100,000
The court characterised the suit as a constitutional matter involving the legal means of compulsory acquisition of land for wayleaves in a project of national significance, placing it squarely under Schedule 6A (j)(ii), which permits such fee as the taxing master considers reasonable taking into account nature, importance, complexity, novelty, value and time.
Legal principles established
#- A court may interfere with a taxing officer's discretion only where the decision was based on an error of principle or the fee awarded was manifestly excessive as to justify an inference of error of principle
- The value of the subject matter for taxation is the property a party seeks to save or protect, not the wider project value; in wayleave disputes it is the wayleave itself
Court orders
#- 1.The notice of motion application dated April 6, 2022 is dismissed
- 2.The taxing officer's decision of March 14, 2022 is upheld
- 3.Costs of the application to the 2nd respondent
- Jurisdiction invoked
- Reference against a taxing officer's ruling under the Advocates Remuneration Order, heard by the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gituthi & 2 others v National Land Commission & another", Case Analysis (2022). Petition 5 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15377/eng@2022-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.