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ELCPartially AllowedEnvironment & Land Case 157 of 2019· [2023] KEELC 21459 (KLR)

Mutuura alias Rose Wangari Njuguna v Nachu Ballast Masters Limited & 3 others

Environment and Land Court
7 November 2023
5,583 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a late fee challenge for unexplained delay but ordered a fresh calculation of legal costs because the original figure lacked a clear basis.

What this practically means

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Executive summary

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This ruling by J G Kemei J of the Environment and Land Court at Thika determined two competing applications arising from the taxation of a Bill of Costs following the discontinuance of the main land suit on 27/4/2022, with costs to the Defendants capped at 40%. The Taxing Master assessed costs at Kshs. 251,373.33 out of a claimed Kshs. 5,107,620. The Defendants (Applicants) filed a Reference challenging the adoption of Kshs. 15 Million as the subject value of the suit land instead of Kshs. 21.5 Million per their Valuation Report, and the refusal to award separate instruction and getting up fees for each of the three Defendants. The Plaintiff (Respondent) cross-applied to extend time to file her own Reference out of time, blaming her counsel's office relocation. The Court refused the extension, holding that blaming counsel alone is insufficient and no evidence of mitigation was offered. On the subject value, the Court found the Kshs. 15 Million figure was not anchored on clear computation, amounting to an error of principle, and remitted the Bill of Costs for fresh assessment. On fees, the Court distinguished Nguruman and Desai, holding that because one amended defence was filed jointly for the three co-related Defendants, the lump sum award was proper. The Respondent's objection to the timeliness of the Applicants' Reference failed, it having been filed within the paragraph 11 timelines. Each party was ordered to bear its own costs.

Key legal issues

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01

Extension of time to file a Reference out of time

Holding

Refused - the Respondent failed to explain the delay or show personal steps to mitigate it

Reasoning

Applying Salat principles and Sakiri v Anyumba, the Court found the office-relocation excuse unsupported by evidence and noted the Respondent took no personal steps despite knowing of the award. Rules and timelines must be respected even under Article 159's oxygen principles.

02

Determination of subject value of the suit land for instruction fees

Holding

The Taxing Master's adoption of Kshs. 15 Million was an error of principle - not anchored on clear computation - warranting remission for fresh assessment

Reasoning

The pleadings and annexures did not yield a determinable value; the Taxing Master attempted an 'average' of the 2012 sale agreement and 2019 valuation without clear computation. Following Joreth, Vipul and Muthoka, the figure was unsupported, amounting to an error of principle justifying interference.

p. 9
03

Separate instruction and getting up fees for each of three Defendants

Holding

No error - lump sum charging affirmed because the defence was filed jointly for all three Applicants

Reasoning

Nguruman and Desai were distinguished: there the defendants clearly and separately denied liability or instructions emanated separately. Here the Applicants were co-related (director/witness relationships) and one amended defence covered all three, so separate fees were unjustified.

04

Timeliness of the Applicants' Reference

Holding

The Reference was filed within the statutory timelines under paragraph 11 of the Advocates Remuneration Order

Reasoning

The Notice of Objection was filed within 14 days of the 25/10/2022 ruling and the Reference on 2/11/2022, within time. The Respondent's objection on this limb failed.

Legal principles established

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  • A Taxing Master's award will not be disturbed unless based on an error of principle or the fee is manifestly excessive or low
  • The value of the subject matter for taxation must be drawn from the pleadings, judgment or settlement; discretion applies only where the value is not ascertainable from those sources
  • Blaming one's advocate alone does not justify extension of time; the litigant must show personal steps to mitigate the delay
  • Where an amended defence is filed jointly for co-related defendants, a lump sum instruction and getting up fee is proper rather than separate fees per defendant

Court orders

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  1. 1.The Chamber Summons dated 14.2.2023 is struck out
  2. 2.The Chamber Summons dated 2.11.2022 partially succeeds - the Bill of Costs dated 27.4.2022 is remitted for fresh assessment in line with the Ruling
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure ActSection 95
  • Advocates Remuneration OrderParagraph 11; Schedule 6
  • Constitution of KenyaArticle 159

Cases cited (18)

  • Nicholas Kiptoo Arap Korir Salat Vs. Independent Electoral and Boundaries Commission & 7 Others
    [2014] eKLR

    Principles for extension of time

  • Leo Sila Mutiso -Vs- Rose Hellen Wangari Mwangi
    [1999] 2 EA 231

    Extension of time principles

  • Sakiri Vs. Anyumba
    [2022] KECA 521 (KLR)

    Blaming one's advocate alone is insufficient for extension of time

  • Rev. Jeremiah Muku Vs. Methodist Church in Kenya Trustees Registered & 2 Others
    (2015) eKLR

    Extension of time to file a Reference (cited by Respondent)

  • Eastland Hotel Ltd Vs. Wafula Simiyu & Co. Ltd
    [2014] eKLR

    Taxing Master cannot derive subject value from affidavits instead of pleadings (cited by Respondent)

  • Singh Gitau Advocates Vs. City Finance Ltd
    (2013) eKLR

    No separate instruction fees for multiple defendants (cited by Respondent)

  • Microsoft Corporation Vs. Mitsumi Computer Garage Ltd & another
    [2001] eKLR

    Rules of procedure are handmaidens of justice

  • Nicholas Kiptoo Arap Korir Salat Vs. Independent Electoral and Boundaries Commission & 6 others
    [2013] eKLR

    Article 159 does not overthrow rules of procedure and timelines

  • Premchand Raichand Limited & Another Vs. Quarry Services of East Africa Limited and Another
    [1972] E.A 162

    Principles for setting aside a Taxing Master's decision

  • First American Bank of Kenya Vs. Shah and Others
    (2002) EA 64

    Interference with taxation only on error of principle or manifest excess

  • Joreth Ltd Vs. Kigano and Associates
    (2002) 1 EA 92

    Subject value determined from pleadings, judgment or settlement

  • Gatirau Peter Munya Vs. Dickson Mwenda Kithinji & 2 Others
    [2014] eKLR

    Annexures form part of pleadings

  • Vipul Premchand Haria Vs. Kilonzo & Co. Advocates
    [2020] eKLR

    Taxing Master's discretion is judicial; failure to give reasons is abuse of discretion

  • Republic Vs. Ministry of Agriculture and 2 Others; Ex-parte Muchiri W'Njuguna & Others
    [2006] eKLR

    Taxation is a matter of opinion; interference only for error of principle or injustice

  • Peter Muthoka and Another Vs. Ochieng and 3 Others
    [2019] eKLR

    Basis of subject value depends on stage of taxation - pleadings, judgment or settlement

  • Nguruman Limited Vs. Jan Bonde Nielsen & 2 Others
    [2014] eKLR

    Separate getting up fees where defendants separately denied liability (distinguished)

  • Desai, Sarvia & Pallan Advocates Vs. Tausi Assurance Co. Ltd
    [2014] eKLR

    Instruction emanating from one party on behalf of defendants (distinguished)

  • D. Njogu & Co. Advocates Vs. Panafcon Engineering Ltd
    [2006] eKLR

    Entitlement to instruction fee when instructed to sue or defend

Jurisdiction invoked
Paragraph 11 of the Advocates Remuneration Order; Section 95 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, "Mutuura alias Rose Wangari Njuguna v Nachu Ballast Masters Limited & 3 others", Case Analysis (2023). Environment & Land Case 157 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21459/eng@2023-11-07

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