Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedEnvironment & Land Petition 1 of 2020· [2023] KEELC 16702 (KLR)

Wanyoike v District, Land Registrar, Murang’a & 4 others

Environment and Land Court
28 March 2023
LGL. N. Gacheru
2,777 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court upheld a Kshs 1,000,000 legal fee award, confirming judges rarely overturn a taxing officer's decision unless a clear error of principle is proven.

What this practically means

#

Executive summary

#
This ruling by L.N. Gacheru J of the Environment and Land Court at Murang'a determined a reference by the petitioner, John Mwangi Wanyoike, under Rule 11 of the Advocates Remuneration Order, challenging the Taxing Master's decision of August 9, 2022 on the 2nd, 3rd and 4th respondents' Bill of Costs. The applicant sought to set aside the decision and have the bill referred to a different taxing master, contending that instruction fees of Kshs 1,000,000 (Kshs 500,000 per head for two defences) and the getting up fee were exorbitant for a petition whose subject matter, land parcel Loc 6/Muthithi/1147, was valued at Kshs 1,600,000, whereas the Remuneration Order provided for Kshs 100,000. The respondents, through J.N. Mbuthia, maintained the award was reasonable given the complexity of the petition, the two separate defences filed for three parties, and the opposition to prerogative orders of certiorari and mandamus. The court framed two issues: whether the taxing master exercised her discretion judiciously, and costs. Applying the principle that interference requires a demonstrated error of principle, the court held that the value of the subject matter was ascertainable at Kshs 1,600,000, that Rule 62 permitted separate costs for separate defences, that fees for opposing prerogative orders are chargeable separately under the 6th Schedule, and that the getting up fee complied with Rule 2. Finding no capricious or whimsical exercise of discretion, the court dismissed the Chamber Summons dated September 22, 2022 entirely, with costs to the 2nd, 3rd and 4th respondents.

Key legal issues

#
01

Whether the taxing master erred in principle in awarding instruction fees of Kshs 1,000,000

Holding

No error of principle; the award reflected two separate defences and opposition to prerogative orders

Reasoning

The court found the value of the subject matter was Kshs 1,600,000 and that the taxing master properly considered the two separate defences filed for the 2nd, 3rd and 4th respondents under Rule 62 of the Advocates Remuneration Order, plus separate fees for responding to prerogative orders under the 6th Schedule. The award was within her discretion.

p. 5
02

Whether the getting up fee was properly allowed

Holding

Properly allowed; it follows the instruction fee under Rule 2 of the Remuneration Order

Reasoning

Rule 2 provides that where a denial of liability is filed or issues are joined, a getting up fee of not less than one-third of the instruction fee shall be allowed in addition to the instruction fee. The court found the award adhered to the rules and declined to interfere.

p. 5

Legal principles established

#
  • A court will only interfere with a taxing officer's decision where an error of principle is demonstrated
  • Where the value of the subject matter is ascertainable from the pleadings, judgment or settlement, the taxing officer has no discretion in assessing instruction fees
  • Where one advocate acts for multiple defendants who file separate pleadings, the taxing officer may allow separate costs if the separate pleadings were necessary or proper

Court orders

#
  1. 1.The Chamber Summons Application dated September 22, 2022 is dismissed entirely
  2. 2.Costs of the application to the 2nd, 3rd and 4th respondents

Authorities

#

Legislation

  • Advocates Remuneration OrderRule 11
  • Advocates Remuneration OrderRule 62
  • Advocates Remuneration OrderRule 2
  • Advocates Remuneration Order6th Schedule

Cases cited (7)

  • KANU National Elections Board & 2 others v Salah Yakub Farah
    (2018) eKLR

    Court interferes with taxing master only where she was clearly wrong or erred in principle

  • University of Nairobi v Moses
    (Civil Appeal No 119 of 2020) (2022) KECA 45 eKLR

    Illustrates reduction of excessive instruction fees; award here was modest

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

    Instruction fees reduced considering complexity and intensity of work

  • Kipkorir, Tito & Kiara Advocates v Deposit Protection Fund Board
    [2005] eKLR

    Judge will not interfere with taxing officer's discretion unless error of principle

  • Premchand Raichand Limited & another v Quarry Services of East Africa Limited and another
    [1972] EA 162

    Principles for setting aside taxing master's decisions; instruction fee covers advocate's work

  • First American Bank of Kenya v Shah and others
    (2002) EA 64

    Principles for setting aside taxing master's decisions

  • Joreth Ltd v Kigano and Associates
    (2002) 1 EA 92

    Value of subject matter for taxation determined from pleadings, judgment or settlement

Jurisdiction invoked
Rule 11 of the Advocates Remuneration Order (reference to a judge against a Taxing Master's decision)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Wanyoike v District, Land Registrar, Murang’a & 4 others", Case Analysis (2023). Environment & Land Petition 1 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16702/eng@2023-03-28

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