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ELCDismissedEnvironment & Land Case 71 of 2022· [2023] KEELC 20259 (KLR)

Kaitany v Nyayo Tea Zones Development Corporation & another; National Land Commission & another (Interested Parties)

Environment and Land Court
29 September 2023
LWL. N. Waithaka
3,748 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out a challenge to taxed legal fees because the claimant skipped a mandatory objection step and never pleaded the property's valuation.

What this practically means

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Executive summary

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This ruling by L. N. Waithaka, J of the Environment and Land Court at Iten determines a reference/chamber summons dated 27th April 2023 by the plaintiff, Silvester K. Kaitany, seeking to set aside the taxing officer's decision of 17th April 2023 (Hon. V. Karanja) which taxed his party and party bill of costs at Kshs.1,585,033/- out of Kshs.7,964,826/- claimed. The applicant contended the taxing officer erred in principle by basing the instruction fee on the Kshs.50,000,000/- general damages awarded in the judgment of 3rd December 2021 instead of the suit property's value of Kshs.369,795,500/- per an NLC valuation report dated 6th November 2017, and by failing to give reasons. The 1st defendant opposed, arguing the value of the subject matter must be ascertained from the pleadings, judgment or settlement, that the valuation report was never pleaded or relied on, and that the claim was for trespass with damages of Kshs.50,000,000/-. The court held, first, that the reference was incompetent because the applicant never complied with paragraph 11(1) of the Advocates Remuneration Order by objecting in writing and seeking the taxing officer's reasons before filing the reference, leaving the court unable to assess whether the discretion was exercised on sound principle. Secondly, on the merits, the court held that the value of the subject matter must be pleaded or ascertainable from the pleadings, judgment or settlement; the plaintiff never pleaded the valuation figure nor sought relief based on it, and no relief was granted on that basis, so the taxing master properly based the instruction fee on the awarded damages. The reference was dismissed as both incompetent and without merit. No costs order was made.

Key legal issues

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01

Compliance with the procedure for references under paragraph 11 of the Advocates Remuneration Order

Holding

The reference was incompetent because the applicant never gave notice of objection to the taxing officer or sought reasons under paragraph 11(1) before filing the reference

Reasoning

Paragraph 11(1) requires an objector to give written notice of the items objected to; the taxing officer must then record and forward reasons. Citing Elijah Ireri and Evan Thiga Gaturu, the court held that without reasons the judge cannot determine whether the taxing master's discretion was exercised on sound principle, so non-compliance is fatal.

02

Whether the NLC valuation report could fix the value of the subject matter for instruction fees

Holding

No - the value of the subject matter must be pleaded or be ascertainable from the pleadings, judgment or settlement; the plaintiff never pleaded the Kshs.369,795,500/- value nor sought relief based on it

Reasoning

The suit sought declarations, an injunction and general damages for trespass; no relief was premised on the valuation report. Relying on World Explorers Safaris and Chalicha FCS, the court held a party cannot rely on unpleaded material, and the taxing master was entitled to base the instruction fee on the general damages awarded.

p. 7

Legal principles established

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  • A party must, before filing a reference under paragraph 11(2) ARO, object in writing to the taxing officer under paragraph 11(1) and obtain reasons; failure renders the reference defective
  • Value of subject matter for instruction fees must be ascertainable from the pleadings, judgment or settlement; a valuation report not relied on in the pleadings cannot supply it

Court orders

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  1. 1.The reference dated 27th April 2023 is dismissed as incompetent and lacking in merit

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Advocates Remuneration OrderParagraph 11(1), 11(2), Schedule 6 paragraph 1(b), Schedule 6(1)(b)
  • Land ActPart VIII

Cases cited (13)

  • Kenya Power & Lighting Co. Ltd vs. Msellem
    (Miscellaneous Civil Application E056 of 2021) (2022) KEELC 2624 (KLR)

    Awarded damages need not form the basis of instruction fees

  • Tom Ojienda & Associates Advocates vs. County Government of Narok
    (Miscellaneous Application E608) (2021) KEHC452 (KLR)

    Valuation report may ascertain subject matter value; also cited for the contrary view that valuation reports should be discouraged where value unpleaded

  • Masore Nyangau & Co. Advocates vs. Kensalt Ltd
    ELC Nakuru Misc App 196 of 2015

    Value of subject matter may be ascertained from documents other than pleadings

  • Khushbir Harjeet Singh Chadha vs. Wesley Maranga Robinson Gichaba
    (2020) eKLR

    Taxing master's duty to give reasons

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

    General principles governing interference with the taxing master's discretion

  • Joreth Limited v. Kigano & Associates
    (2002) eKLR

    Principles undergirding taxation of instruction fees based on value of subject matter

  • SG Mbaabu & Co. Advocates v. Joseph Muoki Kakenyi & 2 others
    (2018) eKLR

    Filing valuation reports to guide taxation ought to be discouraged; value should be specifically pleaded

  • First American Bank of Kenya vs. Shah & others
    (2002) EA 64

    Threshold for interfering with the taxing master's decision

  • Otieno, Ragoti & Company Advocates v. Kenya Airport Authority
    (2021) eKLR

    Where value not ascertainable from pleadings, taxing officer may use other relevant considerations

  • Elijah Ireri t/a Ireri & Company Advocates v. County Government of Embu
    (2021) eKLR

    Requirement of notice of objection and reasons before a reference; failure renders application defective

  • Evan Thiga Gaturu Advocate vs Kenya Commercial Bank Ltd
    (2012) eKLR

    Reasons for taxation enable the judge to assess whether discretion was exercised on sound principles

  • World Explorers Safaris Limited v Cosmopolitan Travel Limited & another
    (2021) eKLR

    Function of pleadings; material facts must be pleaded

  • Chalicha FCS Ltd v. Odhiambo & 9 others
    (1987) KLR 182

    Court cannot make orders outside the pleadings

Jurisdiction invoked
Paragraph 11(2) of the Advocates Remuneration Order - reference to a judge against a taxing officer's decision; inherent jurisdiction under Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Kaitany v Nyayo Tea Zones Development Corporation & another; National Land Commission & another (Interested Parties)", Case Analysis (2023). Environment & Land Case 71 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20259/eng@2023-09-29

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