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ELCPartially AllowedChamber Summons dated 4th October 2023 (arising from 1st and 2nd defendants' bill of costs dated 25th July 2023)· [2024] KEELC 1762 (KLR)

Ebel (Suing as the Legal Administrator of the Estate of Amolo Agenga- Deceased) v Magwanga & 3 others (Environment & Land Case E002 of 2022) [2024] KEELC 1762 (KLR)

Environment and Land Court (High Court-level judge sitting at Homa Bay) - court not expressly named in the judgment
9 April 2024
GOG.M.A Ongondo
1,619 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out a Kshs. 75,000 fee award because a Kshs. 66 million property valuation sat on record, ordering fresh taxation.

What this practically means

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Executive summary

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This ruling determines a Chamber Summons dated 4th October 2023 by the 1st and 2nd defendants seeking, under Rule 11(2) of the Advocates Remuneration Order, to set aside a Deputy Registrar's ruling of 15th September 2023 taxing their bill of costs, or alternatively to have it remitted for fresh taxation before a different Taxing Master. Their suit had been struck out with costs as time barred, and the Taxing Master awarded instruction fees of Kshs. 75,000/- on the basis that the value of the suit property was not indicated in the pleadings and no valuation report was filed. The applicants contended that a valuation report valuing the property at Kshs. 66,276,000/- was on record, making the award inordinately low. The respondent opposed, arguing the reference was filed out of the fourteen-day window without leave under Rule 11(4). The court held the reference was promptly on record, the applicants having immediately sought the ruling and reasons, and any apparent delay explained per the Salat decision. Applying the Supreme Court's principles in Non-Governmental Organizations Coordination Board -vs- EG & 5 others, the court found an error of principle and a manifestly deficient award given the property's high value, and allowed the application in terms of Prayers 1, 2 and 4, setting aside the ruling and referring the bill back with directions, with costs to the applicants.

Key legal issues

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01

Timeliness of the reference under Rule 11 of the Advocates Remuneration Order

Holding

The reference was filed within time; the applicants promptly requested the ruling and reasons, and any apparent delay was satisfactorily explained

Reasoning

The Taxing Master's ruling was delivered on 15th September 2023 and, by a letter of even date, the applicants sought a copy and reasons. Upon receiving the ruling on 25th September 2023 and noting it contained reasons, they lodged the reference. Applying Salat on substantial justice, the court found the application promptly on record.

p. 3
02

Whether the instruction fee of Kshs. 75,000/- was inordinately low

Holding

Yes. The Taxing Master's finding that the value of the property was not indicated was inconsistent with the valuation report on record valuing it at Kshs. 66,276,000/-, rendering the award manifestly deficient

Reasoning

The applicants had filed a Valuation Report dated 24th September 2016 within their list of documents dated 6th September 2022, which valued the suit property at Kshs. 66,276,000/-. The Taxing Master nonetheless proceeded on the basis that no valuation existed. Given the high value of the land, the award was so deficient as to amount to an injustice, warranting interference under the NGO Coordination Board principles.

p. 4

Legal principles established

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  • A judge may interfere with a taxing officer's decision where an error of principle was committed or where the fee awarded is manifestly excessive or manifestly deficient as to amount to an injustice

Court orders

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  1. 1.The Deputy Registrar's ruling on the 1st and 2nd defendants' bill of costs dated 25th July 2023 delivered on 15th September 2023 is set aside (Prayer 1 allowed)
  2. 2.The bill of costs is referred back with directions for proper taxation (Prayer 2 allowed)
  3. 3.Costs of the reference awarded to the defendants/applicants (Prayer 4 allowed)
  4. 4.The alternative prayer for remission to a different Taxing Master was not granted as the court allowed the application in terms of Prayers 1, 2 and 4 only
Jurisdiction invoked
Rule 11(2) of the Advocates Remuneration Order; Order 21 Rule 9A of the Civil Procedure (Amendment) Rules 2020; Sections 1A, 3A and 3B of the Civil Procedure Act, Chapter 21 Laws of Kenya

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, "Ebel (Suing as the Legal Administrator of the Estate of Amolo Agenga- Deceased) v Magwanga & 3 others (Environment & Land Case E002 of 2022) [2024] KEELC 1762 (KLR)", Case Analysis (2024). Chamber Summons dated 4th October 2023 (arising from 1st and 2nd defendants' bill of costs dated 25th July 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1762/eng@2024-04-09

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