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ELCPartially AllowedNot stated in the judgment (Chamber Summons dated 25th July 2023)· [2024] KEELC 1474 (KLR)

Sasenyi Multipurpose Co-operative Society Limited v Rukinga Ranching Company Limited (Environment & Land Case 168 of 2021) [2024] KEELC 1474 (KLR)

High Court of Kenya (not expressly named in the judgment)
19 March 2024
NMN.A. MATHEKA
1,676 words in judgment
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The bottom line

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Kenya's High Court cancelled an award of legal costs because getting-up fees were wrongly awarded when the case never reached hearing, sending the bill back for fresh taxation.

What this practically means

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Executive summary

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This is a first-instance reference by chamber summons dated 25th July 2023, brought under Section 2 of the Advocates Act and Rules 11(1) and (2) of the Advocates Remuneration Order 2006, challenging the decision of a taxing officer made on 5th July 2023. The plaintiff sought to set aside the taxation ruling, to have item No. 1 of the Claimant's party and party bill denied or reassessed, and in the alternative to remit the Defendant's bill to another taxing officer. The defendant opposed the reference as belated, vexatious and an abuse of process. The court set out the Rule 11 procedure for objecting to a taxing officer's decision and applied the settled principles from Republic v Minister for Agriculture ex parte Samuel Muchiri W'Njuguna, First American Bank of Kenya v Shah and Joreth Ltd v Kigano & Associates: interference is warranted only on an error of principle or where fees are manifestly excessive. The court noted the taxing master had based item one on the value of the suit property (Kshs. 510,125,000), taxing it at Kshs. 5,888,906.25, and had added getting up fees of one-third of the instruction fees. It held the fees excessively high and, decisively, that getting up fees were improperly awarded because the main suit was never set down for hearing. The reference was allowed: the taxation ruling of 5th July 2023 was set aside, the Defendant's Bill of Costs dated 6th October 2022 was remitted to another taxing officer, and each party was ordered to bear their own costs of the application.

Key legal issues

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01

Whether getting up fees were properly awarded

Holding

The taxing master erred in principle by awarding getting up fees when the main suit was never set down for hearing

Reasoning

Paragraph 2 of Schedule 6A of the Advocates (Remuneration) Order 2014 provides that getting up fees, being one-third of instruction fees, are chargeable once a matter is confirmed for hearing. The court found that at no point was the main suit directed to be set down for hearing, so the award of getting up fees of Kshs. 1,962,968.75 rested on an erroneous premise and warranted interference.

p. 4
02

Whether the instruction fees awarded were manifestly excessive

Holding

The fees awarded were so excessive as to amount to an error in principle

Reasoning

The taxing master based his calculations on the value of the suit property of Kshs. 510,125,000, taxed item one at Kshs. 5,888,906.25 and added getting up fees as one-third of the instruction fees. The court found the aggregate award excessively high, satisfying the threshold in First American Bank v Shah and Joreth Ltd for interference with the taxing master's discretion.

p. 3

Legal principles established

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  • A court will interfere with a taxing officer's decision only where it is based on an error of principle or the fee is manifestly excessive so as to justify an inference of error of principle
  • Getting up fees are chargeable only once the matter has been confirmed for hearing

Court orders

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  1. 1.The ruling of taxation delivered by the taxing officer made on 5th July 2023 is set aside
  2. 2.The Defendant's Bill of Costs dated 6th October 2022 is remitted to another taxing officer for taxation
  3. 3.Each party to bear their own costs of the application

Authorities

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Legislation

  • Advocates ActSection 2
  • Advocates Remuneration Order 2006Rules 11(1) and (2)
  • Advocates (Remuneration) Order 2014 (Amendment)Paragraph 2 of Schedule 6A; paragraph 2

Cases cited (3)

  • Republic v Minister for Agriculture & 2 Others ex parte Samuel Muchiri W'Njuguna
    [2006] eKLR
  • First American Bank of Kenya v Shah and Others
    [2002] EA 64 / [2002] E.A.L.R 64
  • Joreth Ltd v Kigano and Associates
    [2002] 1 EA 92 / [2002] eKLR
On appeal from
Taxing Officer of the same court
Defendant's Bill of Costs dated 6th October 2022
Jurisdiction invoked
Section 2 of the Advocates Act and Rules 11(1) and (2) of the Advocates Remuneration Order 2006

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, "Sasenyi Multipurpose Co-operative Society Limited v Rukinga Ranching Company Limited (Environment & Land Case 168 of 2021) [2024] KEELC 1474 (KLR)", Case Analysis (2024). Not stated in the judgment (Chamber Summons dated 25th July 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1474/eng@2024-03-19

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