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ELCPartially AllowedMeru E.L.C. Reference arising out of taxation in Meru E.L.C. Petition No. 25 of 2012· [2024] KEELC 740 (KLR)

Kinyua M'Mbijiwe & another (Applicants) v 1st – 5th Respondents (Reference on taxation of Bill of Costs)

Environment and Land Court
14 February 2024
3,004 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court in Meru threw out a Kshs.148.7 million legal fee award because the taxing master based it on the wrong claim.

What this practically means

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Executive summary

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By a chamber summons under Rule 11 of the Advocates Remuneration Order dated 19.12.2023, the applicants sought to set aside the taxing master's ruling of 11.12.2023 taxing the 1st–5th respondents' Bill of Costs at Kshs.148,700,000/= arising from the dismissal (by abatement) of their constitutional petition claiming 3,300 acres of land, and sought a retaxation. The respondents raised a preliminary objection that no notice of objection under Rule 11 had been given and the reference was premature and incompetent, and opposed the reference on the merits, contending the taxing master properly valued the subject matter from the pleadings. The court held the applicants substantially complied with Rule 11: they filed a notice of objection on 15.12.2023 which the Deputy Registrar endorsed with directions to file the reference within 14 days, and dismissed the preliminary objection as misguided. On the merits, the court found the taxing master erred in principle by basing instruction fees solely on the alternative prayer for compensation of Kshs.9,900,000,000/= rather than the principal prayers, without explaining the calculation to Kshs.148,700,000/=, and without considering the respondents' response or that the petition never went to full hearing but abated on the death of the petitioners. Applying Joreth Ltd v Kigano & Associates, Peter Muthoka v Ochieng and Maina v J.M Njenga, the court found the award manifestly excessive. The court set aside the taxed bill for consideration by a different taxing master and made no order as to costs.

Key legal issues

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01

Compliance with Rule 11 procedure (notice of objection and reasons)

Holding

The applicants substantially complied with Rule 11; the preliminary objection was misguided

Reasoning

The applicants filed a notice of objection dated 15.12.2023, received by the taxing master the same day, seeking reasons for Item No. 1. The Deputy Registrar endorsed directives on the notice permitting the reference to be filed within 14 days. Given this endorsement and the timing relative to the 11.12.2023 ruling, the court held the applicants substantially complied with Rule 11 and the preliminary objection failed.

p. 4
02

Whether the taxing master erred in principle in fixing instruction fees at Kshs.148,700,000/=

Holding

The court found the taxed bill unjustified and set it aside

Reasoning

The taxing master based instruction fees on the alternative prayer for land valued at Kshs.9,900,000,000/= rather than the principal prayers, gave no rationale for the calculation, and did not consider the respondents' response. The petition abated without full hearing. Drawing on Peter Muthoka, Maina v Njenga and Mbigi Njuguna, the court held the award manifestly excessive and based on an error of principle, warranting interference.

p. 6

Legal principles established

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  • The value of the subject matter for taxation is determined from the pleadings, judgment or settlement, and only where it is not discernible may the taxing master exercise discretion on what is just
  • There is no justification for a taxing master to base instruction fees solely on an alternative relief rather than the principal prayers

Court orders

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  1. 1.The taxed bill (ruling of 11.12.2023 taxing the Bill of Costs dated 30.8.2023 at Kshs.148,700,000/=) is set aside
  2. 2.The bill is remitted for consideration by a different taxing master
  3. 3.No order as to costs

Authorities

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Legislation

  • Advocates ActSection 48
  • Advocates Remuneration OrderRule 11 (including Sub-rules 2 and 4)
  • Advocates Remuneration Order 2009Schedule VI (2)(iii); Schedule 6 paragraph 1(J)(1); Schedule VI (1)(J)
  • Advocates Remuneration Order 2014Schedule 6A (instruction fees for constitutional petitions)

Cases cited (23)

  • Mundusi Investment Limited vs Patrick Kimathi M'Mugambi & another
    Meru H.C Misc Civil Application No. E082 of 2023
  • Kipkorir Titoo & Kihara Advocates v Deposit Protection Fund Board
    [2005] eKLR
  • Ahmednasir Abdikadir & Co. Advocate v National Bank of Kenya (2)
    [2006] 1 E.A
  • Evans Thiga Gaturu v KCB
    [2012] eKLR
  • Twiga Motor Ltd v Hon. Dalmus Otieno Onyango
    (2015) eKLR
  • Otieno Ragot & Co. Advocates v Kenya Airports Authority
    [2021] eKLR
  • Mbogo and another v Shah
    [1968] E.A 15
  • Joreth Ltd v Kigano and Associates
    [2002] 1 E.A 92
  • Mahansons Food Distribution Ltd & another v Kenya Commercial Bank
    [2021] eKLR
  • Peter Muthoka & another v Ochieng & others
    [2019] eKLR
  • Kenyariri Associates Advocate vs Salama Beach Hotel Ltd and others
    (2015) eKLR
  • Premchand Raichand Ltd v Quarry Services of E.A Ltd
    [1973] E.A 162
  • James Arthur v Nyeri Electricity Undertaking
    [1961] EA 92
  • First American Bank of (K) vs Shah & others
    (2002) E.A LB 64
  • Lubulellah & Associates vs M.K Brothers Ltd & others
    (2004) eKLR
  • Republic vs Ministry of Agriculture & 2 others exparte Samuel Muchiri W. Njuguna and others
    (2006) eKLR
  • Kagwimi Kangethe & Co. Advocates v Olerai Nurseries Ltd
    [2009] eKLR
  • Muri Mwaniki & Wamiti Advocates v African Banking Corporation Ltd
    [2020] eKLR
  • Wambugu Mutende and Associates v Kajuju Holdings Ltd & 5 others
    [2014] eKLR
  • Royal Media Services v Telkom (K) Ltd & others
    [2000] eKLR
  • Maina & another vs J.M Njenga & Co. Advocates
    KECA 90 (K.L.R.) 22nd October [2021]
  • Mbigi Njuguna & Co. advocates v Kenya National Highways Authority
    (2018) eKLR
  • Lalji Mehji Patel & Co. Ltd vs PCEA Foundation & another
    [2020] eKLR
Jurisdiction invoked
Rule 11 of the Advocates Remuneration Order of the Advocates Act (reference against a taxing master's ruling)

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, "Kinyua M'Mbijiwe & another (Applicants) v 1st – 5th Respondents (Reference on taxation of Bill of Costs)", Case Analysis (2024). Meru E.L.C. Reference arising out of taxation in Meru E.L.C. Petition No. 25 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/740/eng@2024-02-14

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