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ELCAllowedELC Mombasa (references arising from party and party bill of costs dated 29th December 2021)· [2024] KEELC 3310 (KLR)

Kassam v Majid & 3 others (Environment & Land Case 203 of 2015) [2024] KEELC 3310 (KLR)

Environment and Land Court
24 April 2024
1,552 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The court determined two cross-references arising from a taxation ruling delivered on 12th July 2023 in respect of the 3rd defendant's party and party bill of costs dated 29th December 2021. The 3rd defendant sought setting aside or variation of the ruling, alternatively fresh taxation before another taxing officer, contending that the taxing officer had addressed a different bill (dated 30th May 2023 for Kshs 62,407,905 instead of the correct bill for Kshs 1,611,625), had wrongly taken Kshs 3,000,000 from the judgment as the value of the suit property, and had applied the wrong Advocates Remuneration Order. The plaintiff filed a rival application seeking setting aside and fresh taxation of items 1, 33, 43, 45 and 46, alleging errors of principle and excessive taxation. The court framed four issues and held that the judgment of 3rd December 2021 never determined the value of the suit property; the Kshs 3,000,000 figure was the plaintiff's pleaded 2007 sale consideration, so the taxing officer misapprehended clear facts. Relying on the Court of Appeal's decision in Peter Muthoka & Another v Chieng & 3 Others [2019] eKLR, the court reaffirmed that the mandatory starting point for instruction fees is the pleadings, judgment or settlement, and discretion only applies where value is not discernible. The court further found that the taxing officer had addressed a different bill of costs, a misdirection likely to affect the taxation outcome. Both applications therefore had merit: the ruling of 12th July 2023 was set aside, the bill of 29th December 2021 was ordered to be taxed afresh before another taxing officer other than Hon. Nyariki J, and each party was ordered to bear their own costs in the references.

Key legal issues

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01

Whether the taxing officer erred in principle in valuing the suit property at Kshs 3,000,000 as at the date of judgment

Holding

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.

Reasoning

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.

p. 3
02

Whether the taxing officer addressed the correct bill of costs

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 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. 3.Each party to bear their own costs in the references.

Authorities

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Legislation

  • Advocates Remuneration Order2014 revision (applicable to assessing instructions fees)
  • Civil Procedure Actsection 27

Cases cited (1)

  • Peter Muthoka & Another versus Chieng & 3 Others
    [2019] eKLR
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

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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, "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.