Kinyua M'Mbijiwe & another (Applicants) v 1st – 5th Respondents (Reference on taxation of Bill of Costs)
The bottom line
#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
#Executive summary
#Key legal issues
#Compliance with Rule 11 procedure (notice of objection and reasons)
The applicants substantially complied with Rule 11; the preliminary objection was misguided
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.
Whether the taxing master erred in principle in fixing instruction fees at Kshs.148,700,000/=
The court found the taxed bill unjustified and set it aside
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.
Legal principles established
#- 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
#- 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.The bill is remitted for consideration by a different taxing master
- 3.No order as to costs
- Jurisdiction invoked
- Rule 11 of the Advocates Remuneration Order of the Advocates Act (reference against a taxing master's ruling)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.