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ELCPartially AllowedELC Case No. 216 of 2012· [2024] KEELC 3662 (KLR)

Giriama Central Associates & Property Management Ltd v Baluchi & 2 others (Environment & Land Case 216 of 2012) [2024] KEELC 3662 (KLR)

Environment and Land Court
8 May 2024
2,350 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 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

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Executive summary

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This is a ruling by the Environment and Land Court at Mombasa (S. M. Kibunja, J) on the plaintiff's reference by chamber summons dated 12th October 2023, challenging the taxation of the 3rd defendant's party and party bill of costs dated 27th May 2022, which had been taxed on 4th October 2023 at Kshs.1,335,435. The plaintiff sought setting aside of the whole bill, or alternatively of items 1 and 139 (Kshs.712,500 instructions fees and Kshs.400,000 getting-up fees), with remission for fresh taxation. The plaintiff argued that the bill offended Rule 62A of the Advocates Remuneration Order for want of a certificate, that the taxing officer lacked jurisdiction, that the wrong (2014) Remuneration Order had been applied instead of the 2009 Order given the suit's 2012 filing, and that the getting-up fee was excessive. The 3rd defendant opposed, contending the plaintiff was estopped and had not met the threshold for interfering with the taxing officer's ruling. The court dismissed the jurisdictional objection, holding the plaintiff failed to discharge the evidential burden under sections 106–109 of the Evidence Act. The Rule 62A objection also failed, the ground not having been raised before the taxing officer, and such non-compliance being a technicality subservient to the overriding objective and Article 159. However, the court found the taxing officer erred in principle by applying the 2014 Order to the 3rd defendant's bill while applying the 2009 Order to the other defendants' bills from the same suit. Items 1 and 139 were set aside and remitted for fresh taxation under the 2009 Order, with each party bearing its own costs.

Key legal issues

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01

Jurisdiction of the deputy registrar to tax a party and party bill of costs

Holding

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.

Reasoning

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.

p. 3
02

Compliance with Rule 62A of the Advocates Remuneration Order

Holding

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.

Reasoning

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.

p. 4
03

Applicable Advocates Remuneration Order – 2009 or 2014

Holding

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.

Reasoning

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.

p. 4
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Taxation of items 1 and 139 (instructions and getting-up fees)

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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

Authorities

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Legislation

  • Advocates Remuneration OrderRule 62A
  • Advocates Remuneration OrderParagraph 10
  • Advocates (Remuneration) (Amendment) Order2009
  • Advocates (Remuneration) (Amendment) Order2014
  • Evidence ActSections 106 to 109
  • Civil Procedure ActSections 3A, 1A, 1B, 27
  • Constitution of KenyaArticle 159

Cases cited (3)

  • Nyachoti & Company Advocates versus Sayani Investment Limited
    (2021) eKLR
  • Otieno, Ragot & Company Advocates versus National Bank of Kenya Ltd
    (2020) eKLR
  • Mohamed & Samnakay Advocates versus Twiga Paints Ltd
    [2011] eKLR
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

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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, "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.