Kassam v Majid & 3 others (Environment & Land Case 203 of 2015) [2024] KEELC 3310 (KLR)
The bottom line
#A Kenyan court threw out a costs ruling because the taxing officer used the wrong property value and even appeared to tax the wrong bill of costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the taxing officer erred in principle in valuing the suit property at Kshs 3,000,000 as at the date of judgment
Yes - the Kshs 3,000,000 figure was the plaintiff's pleaded 2007 sale consideration; the judgment never determined the property's value, so the taxing officer misapprehended the facts.
The court examined the judgment of 3rd December 2021 and found that the Kshs 3,000,000 figure was the plaintiff's pleaded 2007 consideration, while the 3rd defendant bought the property in 2013 for Kshs 33,000,000. The judgment itself made no pronouncement on value. Treating Kshs 3,000,000 as the value at judgment was therefore a misapprehension of clear facts, constituting an error of principle.
Whether the taxing officer addressed the correct bill of costs
The taxing officer appeared to address a different bill of costs dated 30th May 2023 for Kshs 62,407,905 instead of the bill dated 29th December 2021 for Kshs 1,611,625, amounting to a misdirection.
The bill before the taxing officer was dated 29th December 2021 and sought Kshs 1,611,625, yet the ruling's opening paragraph referred to a bill dated 30th May 2023 seeking Kshs 62,407,905. This confusion about the very bill under taxation was a misdirection likely to affect the outcome of the taxation exercise, warranting setting aside the ruling and fresh taxation before a different taxing officer.
Legal principles established
#- Where the value of the subject matter is discernible from the pleadings, judgment or settlement, the taxing officer must use that as the mandatory starting point for instruction fees; discretion only arises where value is not determinable.
Court orders
#- 1.The taxing officer's ruling of 12th July 2023 on the 3rd defendant's party and party bill of costs dated 29th December 2021 be and is hereby set aside.
- 2.The 3rd defendant's party and party bill of costs dated 29th December 2021 be taxed afresh before another taxing officer other than Hon. Nyariki J.
- 3.Each party to bear their own costs in the references.
- Jurisdiction invoked
- Inherent jurisdiction of the court to review a taxing officer's ruling where there is an error in principle (Civil Procedure Act, Advocates Remuneration Order taxation regime)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kassam v Majid & 3 others (Environment & Land Case 203 of 2015) [2024] KEELC 3310 (KLR)", Case Analysis (2024). ELC Mombasa (references arising from party and party bill of costs dated 29th December 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3310/eng@2024-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.