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ELCAllowedEnvironment & Land Case 19 of 2021· [2023] KEELC 17685 (KLR)

Patel (Suing on Behalf of the Estate of Vishnubhai Ghanshyambhai Patel - Deceased) v Patel (Sued in her Capacity as the Administrator of the Estate of Surendrababu Babubhai Patel)

Environment and Land Court
15 May 2023
ABAK Bor
1,118 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed an appeal to the Court of Appeal to clarify how lawyers' fees are calculated from a case's value.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Nanyuki (AK Bor, J) on the Defendant's application dated 22 March 2023 seeking leave, under paragraph 11(3) of the Advocates Remuneration Order, to appeal to the Court of Appeal against the court's ruling of 14 March 2023. That earlier ruling, on a reference objecting to the Taxing Officer's decision of 26 September 2022, referred the bill of costs back for re-taxation and held that the applicable scale for the instruction fees was Schedule 6 of the ARO under the 'other matters' category appearing after paragraph (j), rather than a scale tied to the value of the suit land (Kshs 24,420,000). The Defendant argued the intended appeal was arguable and would enrich jurisprudence on when the value of the subject matter is determinable from the pleadings, relying on Joreth Limited v Kigano & Associates and decisions of Munyao J said to have liberally interpreted it. The Plaintiff opposed, contending there was nothing appealable since re-taxation had not occurred, that the court had merely guided the Taxing Master on the correct schedule, and that dissatisfaction with the ARO should be directed to the Rules Committee. The court framed a single issue: whether leave should be granted. Finding that paragraph 11(3) permits an aggrieved person to appeal with leave, and that it was just for the Court of Appeal to clarify how the value of the subject matter is determined for taxing instruction fees in such disputes, the court granted leave and awarded the Plaintiff the costs of the application.

Key legal issues

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01

Whether leave to appeal should be granted under paragraph 11(3) of the ARO

Holding

Leave granted; the Defendant satisfied the court that it is just for the Court of Appeal to clarify the law on determining the value of the subject matter for taxing instruction fees.

Reasoning

Paragraph 11(3) of the ARO permits any person aggrieved by a judge's decision on a reference to appeal to the Court of Appeal with leave. The court found the intended appeal raised a question of general importance - whether the value of the subject matter is determinable from the pleadings or whether the 'other matters' category of Schedule 6 applies - and that differing decisions of courts of concurrent jurisdiction warranted clarification by a superior court.

p. 3

Legal principles established

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  • A judge may grant leave under paragraph 11(3) of the ARO where it is just, including to allow a superior court to clarify the law on determining the value of subject matter for taxation.

Court orders

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  1. 1.Leave granted to the Defendant to appeal against the court's ruling delivered on 14/03/2023
  2. 2.Plaintiff awarded the costs of the application

Authorities

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Legislation

  • Advocates Remuneration OrderParagraph 11(3)
  • Advocates Remuneration OrderSchedule 6, paragraph 1(a) and 'other matters' category after paragraph (j)

Cases cited (3)

  • Joreth Limited v Kigano & Associates
    [2002] eKLR

    Determining value of subject matter from pleadings for taxation of instruction fees; defendant sought its refinement.

  • Ambwere T.S & Associates v Frank Nyambu Wafukwa & Others
    [2020] eKLR

    Liberal interpretation of Joreth on ascertaining value of subject matter from pleadings.

  • Shiva Enterprises v Mwangi Njenga & Company Advocates
    [2020] eKLR

    Liberal interpretation of Joreth on ascertaining value of subject matter from pleadings.

Jurisdiction invoked
Paragraph 11(3) of the Advocates Remuneration Order - leave of the judge to appeal to the Court of Appeal

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, "Patel (Suing on Behalf of the Estate of Vishnubhai Ghanshyambhai Patel - Deceased) v Patel (Sued in her Capacity as the Administrator of the Estate of Surendrababu Babubhai Patel)", Case Analysis (2023). Environment & Land Case 19 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17685/eng@2023-05-15

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