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ELCDismissedEnvironment and Land Case Civil Suit 841 & 910 of 2007 (Consolidated)· [2023] KEELC 19252 (KLR)

Wahome & 3 others v Mwangi & 3 others (Sued as the Chairman, Vice-Chairman and trustees of Mukuru Kwa Reuben Self Help Group)

Environment and Land Court
17 July 2023
JMJA MOGENI
3,074 words in judgment
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The bottom line

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The Environment and Land Court dismissed a challenge to a Kshs.2 million taxation because the applicants skipped the mandatory objection procedure under Paragraph 11 of the Advocates Remuneration Order.

What this practically means

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Executive summary

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This judgment of the Environment and Land Court at Nairobi (JA Mogeni J) determined a consolidated reference by the 1st and 2nd defendants/applicants seeking to set aside the Taxing Master's decision of 5/04/2023, which taxed the plaintiffs' party-and-party bill of costs at Kshs.2,084,999.67, including instruction fees of Kshs.1,400,000. The applicants argued the taxing master failed to give proper reasons, used an imaginary figure, applied the wrong Remuneration Order (2006 rather than 2002), and that the award was so excessive as to amount to unjust enrichment. They sought stay of execution, setting aside of the decision, and remittal for fresh taxation. The plaintiffs opposed, contending the application was fatally defective for non-compliance with paragraph 11(1) of the Advocates Remuneration Order, which requires notice in writing to the taxing officer of objected items within 14 days, and that no basis for interference was laid. The court held that grievances from taxation rulings must be ventilated exclusively through paragraph 11; the record showed no notice of objection was ever filed, even regarding instruction fees. The taxing officer had given the applicants almost a month to file submissions on objected items and acted within her discretion in considering relevant factors. No error of principle was established. The court found the reference frivolous, vexatious and intended to delay settlement of costs, dismissed both Chamber Summons with costs to the plaintiffs assessed at Kshs.2,084,999.67 payable within 14 days, in default execution to issue, and closed the file.

Key legal issues

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01

Compliance with Paragraph 11 of the Advocates Remuneration Order

Holding

The reference was incompetent because no notice of objection was given to the taxing master within 14 days as required

Reasoning

Paragraph 11 requires an objector to give written notice to the taxing officer of the items objected to within 14 days, then apply to a judge after receiving reasons. The record showed no such notice was ever filed, even regarding the instruction fees the applicants elaborately submitted on. Filing the reference directly bypassed the mandatory procedure, rendering the application fatally defective.

02

Whether the taxing master erred in principle

Holding

No error of principle was established; the taxing officer acted within her discretion

Reasoning

The court noted the bill was served on 24/02/2023 and fixed for assessment on 29/03/2023, giving the applicant almost a month to file submissions on objected items but they failed to do so. The taxing officer considered relevant factors including location, size of the property, consolidation and the interest of the parties. Interference is warranted only on an error of principle or manifest excessiveness, none of which was shown.

Legal principles established

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  • Any grievance from a ruling on taxation can only be ventilated through Paragraph 11 of the Advocates Remuneration Order, which requires prior notice of objection to the taxing officer
  • A judge will not interfere with a taxing officer's discretion absent an error of principle
  • Quantum of taxation is purely within the taxing officer's discretion and the court will not lightly interfere absent error of principle or injustice

Court orders

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  1. 1.Both Chamber Summons dated 14/04/2023 and 24/04/2023 dismissed with costs to the Plaintiff/Respondent
  2. 2.Costs assessed at Kshs.2,084,999.67 payable within 14 days of the order, in default the Respondent at liberty to execute for recovery
  3. 3.The file is closed

Authorities

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Legislation

  • Advocates Actsection 44
  • Advocates (Remuneration) Orderparagraph 11
  • Civil Procedure Actsections 1, 1B, 3, 3A and 89

Cases cited (4)

  • Machira & Co. Advocates v Magugu
    [2002] 2 E.A

    Complaints about a taxing officer's decision are ventilated by way of a reference to a judge under paragraph 11 of the Advocates Remuneration Order

  • Gacau Kariuki & Co. Advocates v Allan Mbugua Ng'ang'a
    [2012] eKLR

    A reference is not an appeal; the court considers whether the taxing master misdirected himself on a matter of principle

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

    A judge will not normally interfere with the taxing officer's discretion unless the officer erred in principle

  • Kamunyori & Company Advocates v Development Bank of Kenya Limited
    [2015] Civil Appeal 206 of 2006

    Failure to ascertain or correctly value the subject matter is an error of principle; manifestly excessive awards justify interference

Jurisdiction invoked
Paragraph 11 of the Advocates Remuneration Order; sections 1, 1B, 3, 3A and 89 of the Civil Procedure Act; section 44 of the Advocates Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Wahome & 3 others v Mwangi & 3 others (Sued as the Chairman, Vice-Chairman and trustees of Mukuru Kwa Reuben Self Help Group)", Case Analysis (2023). Environment and Land Case Civil Suit 841 & 910 of 2007 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19252/eng@2023-07-17

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