Giriama Central Associates & Property Management Ltd v Baluchi & 2 others (Environment & Land Case 216 of 2012) [2024] KEELC 3662 (KLR)
The bottom line
#A Kenyan court ruled lawyers' fees must be calculated using the fee schedule in force when the case was filed, not a later one.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the deputy registrar to tax a party and party bill of costs
The objection failed; the plaintiff adduced nothing to show the taxing officer lacked jurisdiction, and paragraph 10 of the ARO vests taxation in the registrar or deputy registrar.
Counsel for the plaintiff's submissions did not address the jurisdiction ground at all, dealing instead with another party's bill. The court noted paragraph 10 of the ARO and the Nyachoti case confirming that taxation is a discretionary jurisdiction vested in the taxing officer and guided by the ARO as amended from time to time. Under sections 106–109 of the Evidence Act, the burden lay on the plaintiff, which was not discharged.
Compliance with Rule 62A of the Advocates Remuneration Order
The objection failed, both because the ground was not raised before the taxing officer and because Rule 62A non-compliance is a technicality that yields to the overriding objective and Article 159.
The reference court exercises appellate jurisdiction and can only consider matters placed before the taxing officer (Otieno, Ragot). In any event, in Mohamed & Samnakay the court held that although Rule 62A(1) is mandatory, its breach is a technicality that cannot stand in the way of section 3A and 1A/1B of the Civil Procedure Act and Article 159 of the Constitution. The court adopted that reasoning as persuasive.
Applicable Advocates Remuneration Order – 2009 or 2014
The 2009 Order applied, since the suit was filed on 7th December 2012; the taxing officer's use of the 2014 Order for the 3rd defendant while applying the 2009 Order to the 1st and 2nd defendants' bills was an error in principle.
The suit was filed in 2012, and the applicable remuneration order is the one in operation when the suit was filed. The taxing officer gave no justification for applying the 2014 Order to the 3rd defendant's bill while applying the 2009 Order to the 1st and 2nd defendants' bills arising from the same proceeding. That inconsistency constituted an error in principle and misdirection vitiating the taxation of items 1 and 139.
Taxation of items 1 and 139 (instructions and getting-up fees)
The items must be retaxed under the 2009 Order; the plaintiff's claim that the bill only concerned injunction relief did not alter the analysis.
The value of the subject matter at Kshs.50 million was not disputed. The plaintiff's argument that the bill indicated instructions were to defend an injunction suit was of little weight since the plaint also sought specific performance, and applying the 2009 Order would cure any concerns and produce a just determination on the two items.
Legal principles established
#- The Advocates Remuneration Order applicable for taxation of a party and party bill of costs is the one in operation when the suit was filed.
- A taxing officer's reliance on the wrong Advocates Remuneration Order constitutes an error in principle that vitiates the taxation.
- A party alleging that a taxing officer lacked jurisdiction bears the burden of proving it, under sections 106–109 of the Evidence Act.
Court orders
#- 1.Items 1 and 139 of the 3rd defendant's party and party bill of costs dated 27th May 2022 as taxed on 4th October 2023 set aside.
- 2.The 3rd defendant's party and party bill of costs remitted to the taxing officer for fresh taxation of items 1 and 139 under the Advocates Remuneration Order, 2009.
- 3.Each party to bear their own costs in the reference.
- Jurisdiction invoked
- Reference against a taxing officer's ruling under the Advocates Remuneration Order (the court exercising appellate-type supervisory jurisdiction over the deputy registrar's taxation)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Giriama Central Associates & Property Management Ltd v Baluchi & 2 others (Environment & Land Case 216 of 2012) [2024] KEELC 3662 (KLR)", Case Analysis (2024). ELC Case No. 216 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3662/eng@2024-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.