Waiganjo v Nairobi City County & 7 others
The bottom line
#A Nairobi court cut Kshs 166,666.67 from a legal costs bill but let the rest stand, giving the losing party 45 days before payment starts.
What this practically means
#Executive summary
#Key legal issues
#Extension of time to object to a taxation ruling
Extension of time was warranted despite the two-month delay and procedural missteps, because the matter was a constitutional petition requiring substantive justice and no prejudice would be suffered by the respondents
The court applied the Salat/County Executive of Kisumu extension-of-time principles. The applicant's explanation for delay (no delivery receipt attached to email service) was weak, and the applicant also failed to attend the mention when the ruling date was taken. However, because this was a constitutional petition and both parties had already submitted on the reference, the court prioritised substantive justice over procedural default.
Whether the reference was fatally defective for not seeking extension of time
The defect was excused in the constitutional petition context
The initial reference was filed without seeking extension of time, which in an ordinary civil matter would be fatal. The court held that its duty to administer substantive justice under the Constitution justified overlooking the defect, particularly where the respondents would suffer no prejudice.
Applicable schedule for instruction fees in constitutional petitions
Schedule 6(1)(j) of the ARO 2019 applied; the basic instruction fee of Kshs 45,000 was properly applied and the Taxing Master committed no error of principle in enhancing it
The court held that the constitutional petition schedule governs once a matter is filed as a constitutional petition, even against parties against whom no prerogative orders were sought. The Taxing Master properly considered the duration of the matter and its importance; the multiplier applied was a matter of individual discretion, as Butt v Sifuna demonstrates.
Getting up fees where no response is filed
The Taxing Master erred in principle in awarding getting up fees; Kshs 166,666.67 was taxed off the bill
Schedule 6(2) allows getting up fees only where a denial of liability is filed or issues for trial are joined by the pleadings. The 6th and 8th respondents filed no response, only submissions on a point of law, so no getting up fees were payable.
Legal principles established
#- Once a matter is filed as a Constitutional Petition, Schedule 6(1)(j) of the Advocates Remuneration Order applies to taxation even where no prerogative orders were sought against the party presenting the bill
- Getting up fees are only allowable where a denial of liability is filed or issues for trial are joined; where no response is filed, awarding them is an error of principle
- In constitutional petitions, courts should lean towards substantive justice over procedural defects such as failure to seek extension of time before filing a reference
Court orders
#- 1.Extension of time impliedly granted to pursue the reference against the taxation ruling of November 10, 2022
- 2.The getting up fees of Kshs 166,666.67 taxed off the bill, the Taxing Master having erred in principle in awarding them
- 3.No interference with the instruction fees awarded by the Taxing Master
- 4.Prayer for payment of costs in instalments refused
- 5.45 days stay of execution granted from the date of issuance of the certificate of costs
- Jurisdiction invoked
- Paragraph 11(4) of the Advocates Remuneration Order empowering the High Court to enlarge time for filing a reference against a taxing officer's decision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waiganjo v Nairobi City County & 7 others", Case Analysis (2023). Environment & Land Petition 38 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18595/eng@2023-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.