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ELCPartially Allowed· [2024] KEELC 3498 (KLR)

Oraro & another v Jabelu (Environment and Land Appeal E010 of 2020) [2024] KEELC 3498 (KLR)

High Court (judge sitting in reference under the Advocates Remuneration Order)
25 April 2024
2,248 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kisumu High Court cut an advocate's bill of costs from Kshs. 130,380 to Kshs. 30,180 because fees were charged for an appeal that never happened.

What this practically means

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Executive summary

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This ruling by S. Okong'o, J at Kisumu determines a reference under Rule 11 of the Advocates Remuneration Order challenging the taxation of the Respondent's party and party bill of costs (taxed at Kshs. 130,380/- on 13th April 2023 by Hon. M. Shimenga) arising from a dismissed application for leave to appeal out of time. The Respondent raised a preliminary objection contending that both the notice of objection and the reference were filed out of time without leave, and that the reference was incompetent for want of a supporting affidavit. The court overruled the objection, finding both filings within the prescribed time since the reasons sought were only provided on 6th June 2023, and holding that no affidavit was required. On the merits, the court found errors of principle: the taxing officer awarded instruction fees (Kshs. 75,000/-) and getting up fees (Kshs. 25,000/-) for an appeal that was never admitted or heard after leave was refused, and getting up fees on appeal required a certificate under Paragraph 3 of Schedule 6 of the ARO which was never issued; attendance items 4 and 8 were also wrongly taxed on a higher scale without an order under Paragraph 50A of the ARO. No other items were found objectionable, and item 3 was properly taxed as drawn since grounds of opposition were on record. Declining to remit the bill, the court set aside the taxation of items 1(a), 1(b), 4 and 8, taxed items 1(a) and 1(b) off and deducted Kshs. 100/- from each of items 4 and 8, set aside the Kshs. 130,380/- figure, and re-taxed the bill at Kshs. 30,180/-, with a fresh certificate of costs to issue.

Key legal issues

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01

Whether instruction and getting up fees were properly awarded for an appeal that was never admitted or heard

Holding

Taxing both items was an error of principle; the appeal was a non-starter after leave was refused, so both fees were taxed off

Reasoning

The underlying application for leave to appeal out of time had been dismissed on 5th May 2021, so no appeal existed to defend or hear. Awarding Kshs. 75,000/- instruction fees to defend an appeal and Kshs. 25,000/- getting up fees for its trial was on wrong principles. Further, getting up fees on appeal required a certificate under Paragraph 3 of Schedule 6 of the ARO, which could not and was not issued since the appeal was never heard.

p. 3
02

Whether attendance items 4 and 8 were properly taxed on a higher scale

Holding

They were wrongly taxed on a higher scale absent a court order under Paragraph 50A of the ARO; Kshs. 100/- was taxed off each

Reasoning

Higher scale attendance fees under the ARO require an order of the court made under Paragraph 50A. No such order existed, so the taxing officer erred in principle in taxing those items on the higher scale. The court corrected the taxation itself rather than remitting, deducting Kshs. 100/- from each of the Kshs. 1,900/- claimed.

p. 3
03

Whether the notice of objection and the reference were filed out of time and whether the reference was incompetent for want of a supporting affidavit

Holding

The preliminary objection failed: both the notice and reference were within time, and no supporting affidavit was required

Reasoning

The taxing officer's ruling was delivered 13th April 2023; the notice of objection with a request for reasons was filed 26th April 2023, and after the taxing officer indicated on 6th June 2023 that her reasons were in the ruling, the reference was filed on 15th June 2023, within the prescribed time. As to the affidavit limb, an applicant need not support an application with an affidavit where the same is unnecessary.

p. 4
04

Whether item 3 (grounds of opposition) was wrongly taxed as drawn

Holding

No error; grounds of opposition dated 1st February 2021 were on record and filed

Reasoning

The Appellants contended no grounds of opposition were filed and served, but the court noted from the record that the Respondent filed grounds of opposition dated 1st February 2021 on the same date in opposition to the application dated 30th October 2020. The taxing officer therefore did not err in taxing item 3 as drawn.

p. 3

Legal principles established

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  • A judge on reference will not interfere with a taxing officer's exercise of discretion unless the taxing officer erred in principle
  • Failure to ascertain or correctly ascribe the value of the subject matter for taxation is an error of principle; manifestly excessive awards may justify inference of error of principle
  • Getting up fees on appeal can only be awarded where a certificate under Paragraph 3 of Schedule 6 of the ARO has been issued
  • Higher-scale attendance fees require an order of the court under Paragraph 50A of the ARO

Court orders

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  1. 1.The taxing officer's rulings on items 1(a), 1(b), 4 and 8 of the bill of costs dated 18th August 2022 are set aside
  2. 2.Items 1(a) (Kshs. 75,000/-) and 1(b) (Kshs. 25,000/-) are taxed off
  3. 3.Kshs. 100/- is taxed off from the Kshs. 1,900/- claimed under item 4
  4. 4.Kshs. 100/- is taxed off from the Kshs. 1,900/- claimed under item 8
  5. 5.Taxation of the other items in the bill remains undisturbed
  6. 6.The taxation of the bill at Kshs. 130,380/- is set aside
  7. 7.The bill of costs is taxed at Kshs. 30,180/-
  8. 8.The taxing officer shall issue a fresh certificate of costs to the Respondent

Authorities

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Legislation

  • Advocates Remuneration Order (ARO)Rule 11, Paragraph 11(i), Paragraph 3 of Schedule 6, Paragraph 50A

Cases cited (5)

  • Kipkorir, Tito & Kiara Advocates v Deposit Protection Fund Board
    [2005] eKLR
  • Kamunyori & Company Advocates v Development Bank of Kenya Limited
    Civil Appeal No. 206 of 2006, [2015] eKLR
  • Joreth Limited v Kigano & Associates
    Civil Appeal No. 66 of 1999, [2002] eKLR
  • D'Sonza v Ferrao
    [1960] EA 602
  • First American Bank of Kenya Ltd v Gulab P Shah & Others
    [2002] 1 EA 61
On appeal from
Taxing Officer (Hon. M. Shimenga)
Respondent's party and party bill of costs dated 18th August 2022
Jurisdiction invoked
Rule 11 of the Advocates Remuneration Order (reference from a taxing officer)

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, "Oraro & another v Jabelu (Environment and Land Appeal E010 of 2020) [2024] KEELC 3498 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3498/eng@2024-04-25

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