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ELCAllowedEnvironment & Land Case 118 of 2021· [2023] KEELC 19026 (KLR)

Kenya Electricity Transmission Company Ltd v Kibotu Limited

Environment and Land Court
25 July 2023
MMM. N. MWANYALE
1,970 words in judgment
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The bottom line

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Kenya's Environment and Land Court corrected its own judgment to award a company full costs and interest on its counterclaim, plus higher legal fees.

What this practically means

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Executive summary

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The defendant/decree holder applied for review of paragraph 106 of the court's judgment of 16 March 2022 under Section 80 of the Civil Procedure Act and Order 45(2) of the Civil Procedure Rules, and for setting aside aspects of the taxing master's ruling of 12 January 2023 on the bill of costs dated 31/3/2022 (items 2, 3, 4 and 33). The applicant argued that paragraph 106 omitted the costs of the counterclaim which paragraph 104 had awarded, an error apparent on the face of the record, and that the taxing master erred in taxing off getting up fees for want of judicial certification and in refusing separate instruction fees on the counterclaim. The respondent/advocate opposed, contending the court could not interfere with taxation absent wrong principle and that costs on a counterclaim do not attract getting up fees. Framing two issues, the court found an obvious omission in paragraph 106 and reviewed it to award costs of the suit and counterclaim with interest at court rates to the defendant. It held that getting up fees flow directly from instruction fees and need no certification, setting aside the ruling on item 2; that counterclaim costs are separately assessable, setting aside items 3 and 4; and allowed item 33 as drawn. Items 2, 3 and 4 were remitted to the taxing master, with costs of the application to the applicant.

Key legal issues

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01

Error apparent on the face of the record warranting review

Holding

Paragraph 106 of the judgment omitted costs and interests on the counterclaim which had been awarded at paragraph 104; this is an error apparent on the face of the record justifying review under Section 80 CPA and Order 45.

Reasoning

The court compared paragraph 104, which awarded costs of the suit and counterclaim, with paragraph 106, the disposition paragraph, which only awarded costs of the suit and interest. The omission of counterclaim costs and interest was self-evident and required no elaborate argument, satisfying the test for review.

p. 2
02

Getting up fees and judicial certification

Holding

The taxing master erred in principle by taxing off getting up fees on the ground that the judge had not certified the suit; getting up fees need no certification and flow from the instruction fees once a matter goes to trial.

Reasoning

Paragraph 2 of Schedule 6 of the Advocates Remuneration Order provides that where issues are joined, a getting up fee shall be allowed in addition to the instruction fee, being not less than one third of it. Certification by the judge is not a precondition, so taxing off item 2 was based on a wrong principle.

p. 3
03

Separate taxation of instruction fees on a counterclaim

Holding

Costs of a counterclaim are separate from costs of the main suit; the applicant was entitled to instruction fees and getting up fees on the counterclaim, and the taxing master's ruling on items 3 and 4 was set aside for retaxation.

Reasoning

Relying on William Nembe Obora and Kenyariri & Associates, and correcting the respondent's reading of the Mumias Sugar decision, the court held that since costs of the counterclaim were awarded (and paragraph 106 reviewed to reflect this), fees on the counterclaim must be assessed separately from the main suit.

p. 4
04

Item 33 - drawing of replying affidavit

Holding

Item 33 was drawn to scale and is allowed as drawn.

Reasoning

The court found no error in the taxing master's treatment of item 33 (drawing of replying affidavit) and allowed it as drawn, without disturbing that aspect of the taxation.

Legal principles established

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  • A review may be granted to correct an apparent error or omission on the part of the Court; the error must be self-evident and not require elaborate argument.
  • Getting up fees flow directly from the instruction fees and need no certification by a judge; they shall not be less than one third of the instruction fee.
  • A suit is not the same as a counterclaim; instructions fees on a counterclaim are separately assessable where costs of the counterclaim have been awarded.

Court orders

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  1. 1.Paragraph 106 of the judgment dated 16/3/2022 is reviewed to read: 'Costs of the suit and counterclaim and interests thereon at Court rates from date of judgment are awarded to the Defendants.'
  2. 2.The ruling dated 12/01/2023 in respect of item 2 of the Bill of Costs dated 31/3/2022 is set aside and remitted to the taxing master for taxation
  3. 3.The Ruling in respect of items 3 and 4 of the Bill of Costs is set aside and remitted for taxation before the Learned Taxing Master
  4. 4.Item 33 of the Bill of Costs is allowed as drawn
  5. 5.Costs of the application awarded to the Applicant

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45(2)
  • Advocates Remuneration OrderParagraph 11(1-4); Paragraph 2 of Schedule 6

Cases cited (6)

  • Grace Akinyi vs Gladys Kemunto Obiri & another
    (2016) eKLR

    Test for review: correction of apparent error or omission, self-evident and requiring no elaborate argument.

  • National Bank of Kenya vs Ndungu Njue
    Civil Appeal No. 2111 of 1996

    Review may be granted to correct an apparent error or omission; error must be self-evident.

  • Kiambu Murutani Company Limited Vs Kamindi Selfridges Supermarket
    (2021) eKLR

    Getting up fees flow directly from the instruction fees.

  • William Nembe Obora & 73 others vs Rift Valley Railways Limited
    (2018) eKLR

    A suit is not the same as a counterclaim; costs for a counterclaim ought to be assessed separately.

  • Kenyariri & Associates Advocates vs Salama Beach Hotel & 4 others
    (2014) eKLR

    Entitlement to instructions fees on the counterclaim; taxing officer erred in not awarding them.

  • Mumias Sugar Company Limited vs Prof. Tom Ojienda & Associates Advocates
    2021 eKLR

    Cited by respondent against separate assessment; court read it as supporting fees for defending main claim and prosecuting counterclaim.

Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45(2) of the Civil Procedure Rules (application for review)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Electricity Transmission Company Ltd v Kibotu Limited", Case Analysis (2023). Environment & Land Case 118 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19026/eng@2023-07-25

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