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ELCDismissedEnvironment & Land Case 32 of 2020· [2023] KEELC 20002 (KLR)

Kimaisa Ole Masiar & 143 others v District Land Surveyor, Narok North/South Districts & another; District Land Registrar & 19 others (Interested Party)

Environment and Land Court
26 September 2023
CMC.G. Mbogo
1,433 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to reduce a Kshs 500,000 instruction fee because the challengers proved no error of principle or injustice.

What this practically means

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Executive summary

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The applicants, through a chamber summons dated February 27, 2023 under paragraph 11(2) & (4) of the Advocates (Remuneration) Order 2014, sought to set aside, review or vary the taxing master's ruling of February 15, 2023 (Hon. Daniel Ngayo) taxing the interested parties' party-and-party bill of costs at Kshs 613,600, complaining principally of the Kshs 500,000 instruction fee on item 2 and contending that no statement of defence had been filed. The application was opposed by counsel for the 2nd to 5th interested parties, who maintained that a defence was filed, the suit was withdrawn by the applicants, and the taxing officer properly applied Schedule 6 of the Order with no error of principle demonstrated. The court, per C.G. Mbogo J, framed a single issue: whether the taxing officer erred in awarding the instruction fees as he did. Applying the Premchand Raichand principles and the Ex-parte Muchiri W'Njuguna standard, the court held that interference requires an error of principle or an award so excessive or low as to amount to injustice. It found the applicants had not shown whether the fee was high or low; a defence had in fact been filed by the 3rd, 4th and 5th interested parties; and the plaint did not plead the value of the subject matter nor was a valuation report filed. Finding nothing unjust, the court dismissed the chamber summons dated February 27, 2023. No express costs order was made.

Key legal issues

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01

Whether the taxing master erred in principle in awarding Kshs 500,000/- as instruction fees

Holding

No error of principle was demonstrated; the applicants did not show whether the figure was high or low, a defence was in fact filed, and the value of the subject matter was not pleaded, so there was no basis to interfere.

Reasoning

The court applied the Premchand Raichand principles and the Muchiri W'Njuguna standard: interference requires an error of principle or a manifestly excessive/low award amounting to injustice. The applicants' only complaint was that no defence was filed, but the 3rd, 4th and 5th interested parties filed a statement of defence on December 2, 2020. The plaint did not plead the value of the subject matter and no valuation report was filed, so the applicants could not demonstrate that the instruction fee was unjustified.

Legal principles established

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  • A court will not interfere with a taxing officer's award unless it is shown that the decision was based on an error of principle, or the fee was manifestly excessive or so low as to amount to an injustice.

Court orders

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  1. 1.The chamber summons dated February 27, 2023 is dismissed

Authorities

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Legislation

  • Advocates (Remuneration) OrderParagraph 11(2) & (4); Schedule 6

Cases cited (3)

  • Premchand Raichand Ltd another v Quarry Services of East Africa Ltd and Another No 3
    (1972) EA 162

    Principles governing when a court may interfere with a taxing master's exercise of discretion

  • Visser vs Gubb
    1981 (3) SA 753 (C) 754H - 755C

    Court will not interfere with taxing master's discretion unless exercised improperly, on a wrong principle, or clearly wrong

  • Republic v Ministry of Agriculture and 2 Others; Ex-parte Muchiri W'Njuguna & others
    NRB HC Misc Civil Appl No 621 of 2000 [2006] eKLR

    Taxation of costs is a matter of opinion; interference only for error of principle or manifestly excessive/low award

Jurisdiction invoked
Paragraph 11(2) & (4) of the Advocates (Remuneration) Order 2014 (reference against a taxing master's decision)

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, "Kimaisa Ole Masiar & 143 others v District Land Surveyor, Narok North/South Districts & another; District Land Registrar & 19 others (Interested Party)", Case Analysis (2023). Environment & Land Case 32 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20002/eng@2023-09-26

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