Otonglo & 4 others v Nairobi County Government; Kuoni & 4 others (Interested Parties) (Environment & Land Petition 41 of 2017) [2024] KEELC 324 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside an inflated legal fees award because the taxing officer never explained why fees were quadrupled.
What this practically means
#Executive summary
#Key legal issues
#Applicable Remuneration Order and schedule for a constitutional petition
The Advocates Remuneration Order 2014 applied, and Schedule 6 paragraph 1(j)(ii) was the correct provision, the petition being a defended constitutional petition with a minimum instruction fee of Ksh 100,000.
The petition was filed in 2017, after the 2014 Order came into effect on 11th April 2014, so that Order governed. Although the Respondent did not oppose the petition, the interested parties had an identifiable stake and mounted a spirited defence, so the petition was defended. Paragraph 1(j)(ii) of Schedule 6 prescribes a minimum of Ksh 100,000 for opposed constitutional petitions, which may be enhanced on the stated factors.
Whether the taxing master exercised her discretion judiciously in enhancing instruction fees from Ksh 100,000 to Ksh 400,000
The taxing master erred in principle by failing to specify the factors and sufficient reasons for the fourfold enhancement.
Courts will not interfere with a taxing officer's discretion absent an error of principle or an award so high or low as to be unjust. The taxing master stated she had considered the care and labour employed by counsel but gave no details of the specific elements prompting the increase, no highlight of special services, and no demonstration of how the principles led to the enhancement. Discretion must be guided by transparent, regular, reliable and just criteria and supported by cogent reasons.
Objected items on service and attendances and disbursements
The items were correctly taxed under the 2014 Order; the petitioners had relied on the wrong (2009) scale.
The petitioners argued items 7, 47, 67 (service) and 6, 46, 66 (attendances) exceeded the 2009 Order figures, and that disbursements were uncorroborated by receipts. Having found the 2014 Order applicable, the amounts awarded on these items were in order; the taxing master had also considered all the evidence and submissions on disbursements.
Legal principles established
#- A taxing master's discretion will only be interfered with where it is exercised on an error of principle or the award is so excessive or low as to amount to an injustice.
- Discretion is only duly exercised when guided by transparent, regular, reliable and just criteria, and the taxing master must give plausible reasons showing the principles were applied.
- In a constitutional petition, the taxing master should consider the nature of public interest canvassed when deciding whether to enhance fees, having regard to the chilling effect of adverse costs on constitutional litigation.
- A petition actively opposed by interested parties with an identifiable stake is a defended petition for purposes of the applicable minimum instruction fee.
Court orders
#- 1.The decision of the taxing master to allow Kshs 400,000 in respect of the instruction fees is set aside.
- 2.The bill of costs dated 27th October 2020 is remitted for fresh taxation on item 1 by a fresh taxation master guided by stated principles on public/private interest, importance, complexity, responsibility of advocates, novelty, time spent and value of subject matter drawn from pleadings or proceedings.
- On appeal from
- Deputy Registrar (Taxing Officer)
- Party and party bill of costs dated 27th October 2020
- Jurisdiction invoked
- Reference under the Advocates (Remuneration) Order against the decision of the Taxing Master
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otonglo & 4 others v Nairobi County Government; Kuoni & 4 others (Interested Parties) (Environment & Land Petition 41 of 2017) [2024] KEELC 324 (KLR)", Case Analysis (2024). Reference arising from Petition dated 11th September 2017 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/324/eng@2024-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.