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ELCAllowedNot stated in judgment

Marenyo Limited v Kuni Holdings Limited & another (Environment and Land Case E190 of 2021) [2024] KEELC 1070 (KLR)

Environment and Land Court
29 February 2024
2,782 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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Kenya's Environment and Land Court cancelled a Kshs 21.5 million legal fee award because the taxing officer never explained how she calculated it.

What this practically means

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Executive summary

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The Plaintiff/Applicant filed a chamber summons dated 18th May 2023 seeking extension of time to file a reference against the Taxing Master's decision of 26th April 2023, which awarded instruction fees of Kshs.20,000,000 for the suit (item 1) and Kshs.1,500,000 for the counterclaim (item 20) in a Bill of Costs dated 12th October 2022. The underlying suit concerning L.R No. 25469 (49.32 acres in Embakasi) had been resolved by consent, with costs awarded to the Defendants. The Applicant argued the taxing master erred in principle by relying on an undisclosed subject matter value, failing to identify the correct legal provision, and enhancing a baseline fee of Kshs.28,125 to a manifestly excessive sum. The Respondents opposed, contending the decision contained detailed reasons, the letter of 27th April 2023 did not comply with Rule 11(1) ARO, and the assessment was a proper exercise of judicial discretion informed by the prime nature, size and location of the properties. The court (A. Omollo J) held the Applicant's letter complied with Rule 11(1); applying the Supreme Court's extension-of-time principles, found the 8-day delay not inordinate and no prejudice suffered, and granted extension of time. On the merits, the court found the taxing master erred in principle by failing to first identify the prescribed Kshs.75,000 baseline instruction fee before enhancing it, and observed the enhancement to Kshs.20,000,000 was outrageous given the suit resolved without a hearing. The reference was allowed in terms of prayers 1, 3, 4 and 5; items 1 and 20 were set aside and remitted for fresh taxation by any taxing officer other than Hon Isabel Barasa.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Applicant's letter of 27th April 2023 complied with Rule 11(1) of the Advocates Remuneration Order
  2. 2.Whether the court should extend time for filing the reference out of time
  3. 3.Whether the Taxing Master erred in principle in assessing instruction fees under items 1 and 20 of the Bill of Costs

Key legal issues

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01

Compliance with Rule 11(1) ARO - request for reasons

Holding

The Applicant's letter requesting reasons complied with Rule 11(1) despite not listing specific items

Reasoning

The letter asked the taxing master to give reasons for the ruling or confirm that the reasons were contained in the body of the ruling. The court found the letter self-explanatory and sufficient to identify the objection to the global figure awarded, thereby satisfying Rule 11(1) of the Advocates Remuneration Order.

p. 4
02

Extension of time to file the reference

Holding

Extension granted; the 8-day delay was not inordinate and no prejudice would be suffered by the Respondents

Reasoning

Applying the Supreme Court principles in Kenya Revenue Authority v Mount Kenya Bottlers, the court considered the extent of the delay (8 days), the reasons for delay (no formal response to letters seeking the detailed decision), the absence of prejudice curable by costs, and the lack of proof of any reply to the Applicant's letters on the court file.

p. 4
03

Error of principle in taxation of instruction fees

Holding

The Taxing Master erred in principle by failing to first determine the baseline instruction fee before enhancing it, and the resulting enhancement was outrageous

Reasoning

The taxing master relied on the size and location of the land to award Kshs.20,000,000 and Kshs.1,500,000 without first stating the prescribed instruction fee of Kshs.75,000 applicable where value is not pleaded, and then justifying any enhancement. The suit was resolved by consent without a hearing, so complexity was not a factor. The discretion was therefore not exercised judiciously.

p. 5

Legal principles established

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  • Where the value of the subject matter is not pleaded, the taxing master must first identify the baseline instruction fee under the ARO before enhancing it, and must exercise that discretion judiciously
  • Extension of time is an equitable remedy granted at the court's discretion to a deserving party who explains the delay and absence of prejudice

Court orders

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  1. 1.Extension of time granted to file the reference out of time
  2. 2.The decision of the Taxing Master delivered on 26th April 2023 on Items 1 and 20 in the Bill of Costs dated 12th October 2022 set aside
  3. 3.Items 1 and 20 in the Bill of Costs dated 12th October 2022 to be taxed afresh
  4. 4.The bill of costs referred back for taxation of instruction fee (item 1) and the counter-claim (item 20) by any taxing officer other than Hon Isabel Barasa
  5. 5.Costs of the application to the Applicant (prayer 5 allowed)

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Rule 11 of the Advocates Remuneration Order (reference against a Taxing Master's decision; extension of time under the court's inherent discretion)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I therefore find that the reference is merited and is allowed in terms of prayers 1, 3,4 and 5 of the application. The bill of costs dated 12th October 2022 is referred back for taxation on the instructions fee (item 1) on the suit and the counter-claim (item 20) by any taxing oficer other than Hon Isabel Barasa.
p. 6Final orders - reference allowed and remitted for fresh taxation
Thus, the taxing master did not exercise her discretion judiciously by first stating the instruction fees provided for in the ARO and then increasing.
p. 5Error of principle in taxation
The extent of delay here is a period of 8 days which cannot be treated as in ordinate.
p. 4Extension of time
It thus complied with the requirements of Rule 11(1) of Advocates Renumeration Order.
p. 4Rule 11(1) compliance by letter seeking reasons

Issues in the judgment

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minor

The judgment does not state the case/file number or neutral citation of this reference

minor

The judgment inconsistently dates the taxation hearing in the quoted letter versus the delivered decision date

minor

The taxed costs figure appears as Kshs.10,842,427.50 in the body and Kshs.10,842,427.56 in the quoted letter

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, "Marenyo Limited v Kuni Holdings Limited & another (Environment and Land Case E190 of 2021) [2024] KEELC 1070 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1070/eng@2024-02-29

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