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Case Brief · caselaw.co.ke
ELCDismissedPetition 5 of 2018· [2022] KEELC 15377 (KLR)

Gituthi & 2 others v National Land Commission & another

Environment and Land Court
8 December 2022
4,960 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling by L. N. Gacheru J of the Environment and Land Court at Murang'a on a reference by the petitioners against the Deputy Registrar's taxation of their party-and-party bill of costs dated November 4, 2021. The taxing officer had awarded Kshs 8,314,364 out of a claimed Kshs 27,174,242, taxing off Kshs 18,859,878. The applicants sought to set aside the ruling of March 14, 2022, arguing that the taxing officer misdirected herself on instruction and getting up fees by ignoring the nature and importance of the petition, its alleged subject matter value of Kshs 23.4 billion (the Northern Collector Tunnel project), its complexity, and the time spent. The 2nd respondent, Athi Water Services Board, opposed, contending that the petition concerned only whether due process was followed in acquiring wayleaves over the petitioners' land, not the value of the entire project, and that the matter was neither complex nor novel. The court framed the singular issue as whether there were grounds to interfere with the taxation. Applying the Premchand Raichand principles and Joreth Ltd v Kigano & Associates, and persuaded by Muriu Mungai v China Civil Engineering and the Kipkorir, Titoo & Kiara case, the court held that the subject matter in dispute was the wayleave over the petitioners' property, not the Kshs 23.4 billion project, and that the wayleave procedure under the Land Act is clearly defined, making the matter neither novel nor complex. The reference was dismissed entirely, the taxing officer's decision upheld, with costs to the 2nd respondent.

Key legal issues

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01

Value of the subject matter for instruction fees

Holding

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

Reasoning

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.

p. 9
02

Complexity and novelty of the matter

Holding

The procedure for creation of wayleaves is clearly defined in law, so the matter was neither novel nor complex

Reasoning

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.

p. 9
03

Applicable remuneration schedule

Holding

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

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The notice of motion application dated April 6, 2022 is dismissed
  2. 2.The taxing officer's decision of March 14, 2022 is upheld
  3. 3.Costs of the application to the 2nd respondent

Authorities

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Legislation

  • Advocates Remuneration OrderSchedule 6A(1)(j)(ii)
  • Advocates Remuneration OrderSchedule 6A Part 2 (getting up fees)
  • Advocates Remuneration OrderSchedule 6A paragraph 7(g)
  • Advocates Remuneration OrderRule 21
  • Land ActSections 144(4) and 146
  • Stamp Duty ActSection 19(1)

Cases cited (22)

  • Catherine Njeri Angote v Lucy Wangari Ngugi & another
    (2021) eKLR

    Circumstances and principles for interfering with a taxing master's discretion

  • Premchand Raichand Ltd and Another v Quarry Services of East Africa Ltd and another
    (1972) EA 162

    Taxation of costs is not a mathematical exercise; interference only for error of principle or manifest excess

  • R v University of Nairobi & another Ex parte Nasibwa Wakenya Moses

    Comparable award of Kshs 4,000,000 instruction fees in judicial review

  • Rose Wangui Mambo & 2 others v Limuru Country Club & 15 others
    (2020) eKLR

    Comparable award of Kshs 4,800,000 instruction fees

  • Muriithi Wanjau & Caesar Ngige Wanjau t/a Wanjau Advocates v Telkom Kenya Ltd
    (2011) eKLR

    Comparable instruction fees of Kshs 18,420,886.62

  • Nguruman Ltd v Kenya Civil Aviation Authority & 3 others
    (2014) eKLR

    Entitlement to getting up fees where petition contested

  • Muri Mwaniki & Wamiti Advocates v Berben Co Ltd & another
    (2017) eKLR

    Taxing master may require proof of disbursement items

  • Luka Wagana & 2 others v Charles Alexander Kiai & Another
    (2020) eKLR

    Same proposition on proof of disbursements

  • Mwangi Keng'ara & Co Advocates v Invesco Assurance Co Ltd
    (2021) eKLR

    Meaning of 'attendance' includes meetings and service, not only court attendance

  • R v Kenya Medical Supplies Authority & another
    (2019) eKLR

    Getting up fees payable where matter contested; trial need not be viva voce

  • Hellen Waithita Kabugi (suing as the Personal Representative of the Estate of John Paul Shikuta v Leonard Kamau Njuguna & Another
    (2018) eKLR

    Contempt application is sui generis; getting up fee warranted

  • Swalleh C Kariuki & another v Violet Owiso Okuyu
    (2021) eKLR

    Duty to affix revenue stamps lies on receiver of monies, not payee

  • Joseph Kimani & another v James Kangara Kahanya
    (2017) eKLR

    Receipts to be stamped by receiver, not payee

  • Elijah Sikona & another v Mara Conservancy & 5 others
    Civil Case No 37 of 2013 (2014) eKLR

    Definition of a cause of action

  • Joreth Ltd v Kigano & Associates
    Civil Appeal No 66 of 1999 (2002) 1 EA 92

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

  • Gathinga Mwangi & Company Advocates v Jane Mumbi Kiano
    Nyeri HC Misc App No 318 of 2013

    Party seeking costs must cogently justify complexity and work involved

  • President of Republic of South Africa & others v Gauteng Lions Rugby Union & Another

    Principles guiding review of taxation; equitable balance and reasonable remuneration

  • Republic v Minister of Agriculture ex parte W'njuguna & others

    Complex elements guiding taxing officer's discretion must be specified cogently

  • First American Bank of Kenya v Shah and others
    [2002] 1 EA 64

    Principles for consideration on interference with taxation

  • Machareus Obaga Anunda v Kenya Electricity Transmission Co Ltd
    [2015] eKLR

    Procedure for acquisition of a wayleave under the Land Act

  • Muriu Mungai & Company Advocates v China Civil Engineering Construction Corporation (K) Ltd
    [2019] eKLR

    In wayleave dispute subject matter is the wayleave, not the entire project value

  • Kipkorir, Titoo & Kiara Case

    Subject matter of suit is the property a party seeks to save or protect; taxation set aside for error of principle

Jurisdiction invoked
Reference against a taxing officer's ruling under the Advocates Remuneration Order, heard by the Environment and Land Court

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, "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.