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ELCDismissedChamber Summons Application dated 24th August 2023· [2024] KEELC 526 (KLR)

Mwangi v Kanyi (Environment & Land Case 175 of 2017) [2024] KEELC 526 (KLR)

Environment and Land Court
8 February 2024
LGL. Gacheru
2,766 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court upheld a Kshs 75,000 instruction fee award, confirming judges rarely disturb a taxing officer's costs decision without a clear error.

What this practically means

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Executive summary

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The Defendant/Applicant, Jamleck Chege Kanyi, filed a Chamber Summons under Rule 11 of the Advocates (Remuneration) Order 2014 seeking to set aside the taxing officer's ruling of 12th July 2023 on his Bill of Costs and to have instruction fees re-taxed. The underlying suit, in which the Plaintiff sought a permanent injunction over five parcels of land, had been dismissed with costs to the Defendant by judgment dated 4th July 2019. The Applicant argued that the award of Kshs 75,000/- as instruction fees was manifestly low, that the taxing officer failed to appreciate the value and size of the suit properties, the complexity and ten-year history of the litigation, and that the taxing officer wrongly applied the Advocates Remuneration Order 2009 instead of the 2014 Order. The Plaintiff/Respondent opposed, contending the dispute was a boundary dispute of no ascertainable value and that the application sought unjust enrichment. The Court framed two issues: whether the taxing master erred in principle in awarding Kshs 75,000/- as instruction fees, and whether she erred in applying the 2009 Order. Surveying the established principles limiting judicial interference with taxation, the Court held the dispute was a boundary dispute whose value was not ascertainable from the pleadings or judgment, that it was not complex, and that the instruction fees awarded were sufficient under Schedule 6 of the 2014 Order. On the second issue, the Court found pre-2014 costs were properly taxed under the 2009 Order and post-2014 costs under the 2014 Order. The application was dismissed entirely with costs to the Plaintiff/Respondent.

Key legal issues

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01

Whether the taxing master erred in principle in awarding Kshs 75,000/- as instruction fees

Holding

No error of principle; the dispute was a boundary dispute of no ascertainable value, not complex, and the award was sufficient under schedule 6 of the Advocates Remuneration Order 2014.

Reasoning

The Court surveyed the settled principles governing interference with a taxing officer's discretion (Joreth, Kipkorir Titoo & Kiara, KANU National Elections Board, Bank of Uganda, Republic v Ministry of Agriculture ex parte Muchiri W'Njuguna, Phemchand Raichand). It found the dispute was a boundary/encroachment dispute, that the value of the suit property was not ascertainable from the pleadings or judgment, that the dispute was not complex, and that the taxing officer properly considered the general conduct of the case and the subject-matter in awarding Kshs 75,000/-, which was sufficient.

p. 5
02

Whether the taxing oficer erred by applying the Advocates (Remuneration) Order 2009 to the case

Holding

No; pre-2014 costs were properly taxed under the 2009 Order and costs from 2014 onwards were taxed under the 2014 Order, so the 2009 Order was not applied indiscriminately.

Reasoning

The taxing officer's ruling had taxed costs incurred prior to 2014 under the 2009 Order (the suit having been filed in 2012) and attendances from 2014 onwards under the 2014 Order. The Court found this bifurcated approach sound and proper, and rejected the Applicant's contention that the 2009 Order was applied to all items in the Bill of Costs dated 23rd May 2023.

p. 6

Legal principles established

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  • A judge on a reference will not interfere with a taxing officer's decision absent an error of principle or an award so excessive or low as to amount to an injustice; where the value of the subject-matter is not ascertainable from the pleadings or judgment, the taxing officer may exercise discretion to assess instruction fee considering the nature and importance of the matter, the interest of the parties, and the general conduct of proceedings.

Court orders

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  1. 1.The Chamber Summons Application dated 24th August 2023 is dismissed entirely with costs to the Plaintiff/Respondent.
  2. 2.The taxing officer's ruling dated 12th July 2023 is upheld.

Authorities

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Legislation

  • The Advocates (Remuneration) OrderRule 11; Schedule 6
  • Advocates Remuneration Order 2009
  • Advocates Remuneration Order 2014

Cases cited (6)

  • Joreth Limited v Kigano & Associates
    [2002] eKLR
  • Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board
    NRB Civil Appeal No. 220 of 2004 [2005] eKLR
  • KANU National Elections Board & 2 others v Salah Yakub Farah
    [2018] eKLR
  • Bank of Uganda v Banco Arabe Espanol
    SC Civil Application No. 23 of 1999
  • Republic v Ministry of Agriculture & 2 others Ex parte Muchiri W'Njuguna & 6 Others
    {2006} eKLR
  • Phemchand Raichand Ltd Another v Quarry services of East Africa Ltd and Another
    {1972} EA 162
Jurisdiction invoked
Rule 11 of The Advocates (Remuneration) Order (2014) - reference to a judge from taxation by the Taxing Officer

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, "Mwangi v Kanyi (Environment & Land Case 175 of 2017) [2024] KEELC 526 (KLR)", Case Analysis (2024). Chamber Summons Application dated 24th August 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/526/eng@2024-02-08

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