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ELCDismissedMachakos ELC Misc. Appl. No. 387 of 2017 (Chamber Summons dated 22nd November 2019)· [2024] KEELC 151 (KLR)

Machakos County Government v Kabaka t/a Kabaka and Associates Advocates (Environment and Land Miscellaneous Application 66 of 2019) [2024] KEELC 151 (KLR)

Environment and Land Court
24 January 2024
2,767 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The applicant, Machakos County Government, moved the court by chamber summons dated 22nd November 2019 seeking to set aside the taxing officer's ruling of 6th November 2019 in Machakos ELC Misc. Appl. No. 387 of 2017, by which the advocate, Boniface Mutinda Kabaka, was awarded instruction fees of Kshs. 71,984,824.025 on his advocate-client bill of costs arising from Machakos ELC Case No. 40 of 2015, in which the County had claimed outstanding rates of Kshs. 4,818,988,535 from Kapiti Plains Estate Ltd. The applicant contended the taxing officer erred in principle by valuing the subject matter on the pleaded monetary claim rather than an alleged 2016 deed of settlement under which 450 acres were to be transferred in lieu of the rates, and that the fees were manifestly excessive. The respondent maintained that no settlement existed, as evidenced by the affidavit of the County's Chief Lands Officer, and that instruction fees were properly based on the pleadings. The court framed the sole issue as whether the taxing officer properly exercised her discretion. Relying on Schedule 6 of the Advocates (Remuneration) Order 2014, First American Bank of Kenya v. Shah, Premchand Raichand and Peter Muthoka v. Ochieng, the court held that the value of the subject matter may be ascertained from pleadings, judgment or settlement; where a settlement is alleged but contested, the alleging party must prove it by producing the deed of settlement. Since the applicant did not file any deed of settlement, the pleadings governed, and the taxing officer properly derived the value from them. The chamber summons was dismissed with costs to the respondent on 24th January 2024.

Key legal issues

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01

Whether the taxing officer erred in principle in basing instruction fees on the pleaded sum of Kshs. 4,818,988,535 rather than an alleged settlement of 450 acres

Holding

No error of principle; the alleged settlement was not proved and the pleadings disclosed the value of the subject matter.

Reasoning

The court held that the value of the subject matter may be ascertained from pleadings, judgment or settlement, depending on the stage the proceedings reached. A settlement, if proved, displaces reliance on pleadings. The applicant alleging a settlement was bound to prove it under Section 107 of the Evidence Act, but did not avail the deed of settlement, relying only on affidavits and counter-allegations. In the absence of a proved settlement or judgment, the taxing officer rightly turned to the pleadings, which disclosed the rates claimed.

p. 5
02

Whether the awarded instruction fees were manifestly excessive so as to justify interference

Holding

The applicant failed to demonstrate that the award was excessive or based on an error of principle.

Reasoning

Taxation is a discretionary function and a court will not interfere merely because a party thinks the award too high or too low. Interference requires demonstration of an error of principle or an award manifestly excessive or low amounting to injustice. Since the taxing officer derived the value from the pleadings in accordance with Schedule 6 of the Advocates (Remuneration) Order 2014, no basis for interference was established.

p. 3

Legal principles established

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  • The value of the subject matter for instruction fees may be ascertained from pleadings, judgment or settlement; where there is a judgment or settlement, pleadings are no longer relevant, and a party alleging a settlement bears the burden of proving it by production of the deed of settlement.
  • A court will not interfere with a taxing officer's discretion unless it is shown the decision was based on an error of principle or the award was manifestly excessive or too low as to amount to an injustice.

Court orders

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  1. 1.The chamber summons dated 22nd November 2019 is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Advocates (Remuneration) Order 2014Schedule 6 (including Schedule 6(b))
  • Evidence ActSection 107

Cases cited (7)

  • Peter Muthoka & Another v. Ochieng & 3 Others
    [2019] eKLR
  • DK Law Advocates v. Zhong Gang Building Material Co. Ltd & Another
    [2021] eKLR
  • Premchand Raichand Limited & Another v. Quarry Services of East Africa Ltd & Another
    [1972] EA
  • Joreth Limited v. Kigano & Associates
    [2002] 1 EA 92
  • Mohansons Food Distributors Ltd & Another v. Kenya Commercial Bank Limited & Another
    [2021] eKLR
  • Otieno, Ragot & Company Advocates v. Kenya Airports Authority
    [2021] eKLR
  • First American Bank of Kenya v. Shah & Others
    [2002] 1 EA 64
Jurisdiction invoked
Reference against a taxing officer's decision under the Advocates (Remuneration) Order 2014

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Machakos County Government v Kabaka t/a Kabaka and Associates Advocates (Environment and Land Miscellaneous Application 66 of 2019) [2024] KEELC 151 (KLR)", Case Analysis (2024). Machakos ELC Misc. Appl. No. 387 of 2017 (Chamber Summons dated 22nd November 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/151/eng@2024-01-24

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