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ELCDismissedChamber Summons application dated 3rd May, 2023 (taxation reference from bill of costs dated 29th November, 2022)· [2024] KEELC 1669 (KLR)

Evanson Jidraph Kamau Waitiki v Kenya Power & Lighting Company Limited

Environment and Land Court
4 April 2024
LNL. L. Naikuni
10,005 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~40 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court upheld most of a Kshs. 2.58 million costs award against Kenya Power, confirming courts rarely disturb a Taxing Officer's decisions.

What this practically means

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Executive summary

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This was a taxation reference by the plaintiff, Evanson Jidraph Kamau Waitiki, under Paragraph 11(2) of the Advocates Remuneration Order, challenging the Taxing Officer's ruling of 5th April 2023 taxing his party and party bill of costs dated 29th November 2022 (drawn at Kshs. 8,223,607) at approximately Kshs. 2.5 million in a trespass suit against Kenya Power & Lighting Company Limited over some 930 acres in Likoni, for which the court had awarded Kshs. 21,000,000 in damages on 12th October 2022. The plaintiff complained that instruction fees of Kshs. 810,000 were manifestly low given the value of the subject matter, complexity, ten-year duration and the parties' interests; that court attendances were wrongly taxed on half-day scale; and that clerk and advocate road transport and accommodation items were wrongly disallowed for want of receipts. The defendant, through grounds of opposition and submissions, maintained there was no error of principle and that disbursements required proof. Justice L. L. Naikuni restated the settled principles from First American Bank of Kenya v Shah, Machira v Magugu, Kipkorir Tito & Kiara and Joreth Ltd v Kigano, holding that quantum of taxation is within the Taxing Officer's discretion and interference requires an error of principle. He found none: the instruction fee increase was discretionary and proper; the attendances could not have occupied full days given virtual and multi-hearing sittings; and disbursements had to be proved by receipts, which were absent. The reference was dismissed, the court amending only the Taxing Master's arithmetical figure to Kshs. 2,582,642 under Sections 99 and 100 of the Civil Procedure Act. Each party was to bear its own costs, no orders as to costs being made.

Key legal issues

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01

Whether the Taxing Officer erred in principle in taxing instruction fees (item 2a)

Holding

No error - the Taxing Master had discretion to increase the basic instruction fee from Kshs. 515,000 to Kshs. 810,000 and the value of subject matter was properly pegged on the judgment award.

Reasoning

The court applied Joreth Ltd v Kigano & Associates on ascertainment of the value of subject matter from the pleadings or judgment. The plaintiff's suit yielded a Kshs. 21,000,000 award, giving a scale basic fee of Kshs. 515,000, which the Taxing Master increased to Kshs. 810,000. That exercise of discretion disclosed no error of principle; costs should not be used to extort. The court corrected only the taxed-off arithmetic to Kshs. 4,190,000.

p. 15
02

Whether court attendances (items 57-93) were wrongly taxed on half-day scale

Holding

No error; only shortfall was failure to indicate the Schedule applied.

Reasoning

The judge, who had tried the matter, noted virtual proceedings ran mornings and multiple hearings ran afternoons, so no attendance spanned a full day. The items were taxed to scale and no full-day award was proven; the Taxing Officer's only omission was failing to state the Schedule relied upon.

p. 16
03

Whether transport and accommodation items could be allowed without receipts

Holding

Disallowance was proper - disbursements must be proved; MPESA codes existed for flights but not for road transport and accommodation.

Reasoning

Applying Elijah Ireri t/a Ireri & Company Advocates v County Government of Embu, the court held disbursements must be proved by evidence. Receipts for bus, fuel or accommodation could have been obtained or replaced even after the passage of time. The clerk's filing trips were covered by Schedule 6 Paragraph 7(b) routine-filing fees, so no error of principle was established.

p. 17
04

Whether the reference complied with Paragraph 11 of the Advocates Remuneration Order

Holding

The court found compliance with Paragraph 11(1) but ultimately held the reference lacked basis and was frivolous and vexatious.

Reasoning

The court set out the Paragraph 11 procedure and was satisfied there was compliance with Paragraph 11(1). It nonetheless concluded the reference did not adhere to the established procedure and was intended to delay settlement of costs properly assessed. There is an internal tension between these findings, flagged as a data quality issue.

p. 15

Legal principles established

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  • A Judge will not interfere with a Taxing Officer's decision unless it is based on an error of principle or the fee is manifestly excessive or inadequate so as to infer error of principle.
  • The value of the subject matter for taxation is determined from the pleadings, judgment or settlement.
  • Disbursements must be proved by evidence and receipts; a taxing officer cannot assume an expense on a verbal claim.

Court orders

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  1. 1.The Chamber Summons application dated 3rd May, 2023 dismissed in its entirety save for the sum total of the amount the bill was taxed at.
  2. 2.The Taxing Master's taxed figure of Kshs. 2,572,642.00 amended to Kshs. 2,582,642.00 pursuant to Sections 99 and 100 of the Civil Procedure Act, Cap. 21.
  3. 3.No orders as to costs.

Authorities

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Legislation

  • Advocates Remuneration OrderParagraph 11(1), (2), (3), (4); Schedule 6 Paragraph 1 and proviso; Schedule 6 Paragraph 7(b); Schedule V Paragraph 7; Paragraph 74; Paragraph 74A
  • Civil Procedure Act, Cap. 21Sections 1A, 1B, 3, 3A, 27(1), 79G, 99, 100
  • Environment and Land Court Act, No. 19 of 2011Sections 3 and 13
  • Evidence Act, Cap. 80Section 108

Cases cited (17)

  • First American Bank of Kenya v Shah and Others
    [2002] 1 E.A. 64 at 69
  • Sophie Chirchir v Africa Merchant Assurance Co. Ltd
    [2022] eKLR
  • Nolly K. Musango v Peter Odanga & Anor
    [2021] eKLR
  • Joel Lesale & Eight Others v Director General, NEMA & Another
    [2010] eKLR
  • Kenya Ports Authority Pension Scheme & others v Kinyua Kamundi & Ano
    [2022] eKLR
  • Conrad Maloba and Associates v Music Copyright Society of Kenya (MCSK)
    [2021] eKLR
  • Machira & Co. Advocates v Magugu
    [2002] 2 E.A.
  • Gacau Kariuki & Co. Advocates v Allan Mbugua Ng'ang'a
    [2012] eKLR
  • Kipkorir, Tito & Kiara Advocates v Deposit Protection Fund Board
    [2005] eKLR
  • Kamunyori & Company Advocates v Development Bank of Kenya Limited
    Civil Appeal 206 of 2006
  • Rukidi v Iguru and Another
    [1995-1998] 2 EA 318
  • Paul Wanjohi Mathenge v Duncan Gichane Mathenge
    [2013] eKLR
  • Mwangi v Kenya Airways Limited
    [2003] KLR 486
  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Application No Nai 255 of 1997 (unreported)
  • Henry Mukora Mwangi v Charles Gichina Mwangi
    Civil Application No. Nai 26 of 2004
  • Joreth Limited v Kigano & Associates
    Civil Appeal No. 66 of 1999 [2002] eKLR
  • Elijah Ireri t/a Ireri & Company Advocates v County Government of Embu
    [2021] eKLR
On appeal from
Taxing Officer (ELC Deputy Registrar, Hon. Nyariki)
Plaintiff's party and party bill of costs dated 29th November, 2022
Jurisdiction invoked
Paragraph 11(2) of the Advocates Remuneration Order; sections 1A, 1B and 3 of the Civil Procedure Act, Cap. 21; Sections 3 and 13 of the Environment and Land Court Act, No. 19 of 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Evanson Jidraph Kamau Waitiki v Kenya Power & Lighting Company Limited", Case Analysis (2024). Chamber Summons application dated 3rd May, 2023 (taxation reference from bill of costs dated 29th November, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1669/eng@2024-04-04

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