Ndegwa v Ol’kalou Water & Sanitation Company Limited & another (Environment & Land Case 107 of 2023) [2024] KEELC 3859 (KLR)
The bottom line
#A Kenyan court threw out a Kshs.9.8 million legal costs bill, ruling Kshs.3 million instruction fees were unjustified where the case's value couldn't be established.
What this practically means
#Executive summary
#Key legal issues
#Whether the taxing officer committed an error of principle in allowing instruction fee of Kshs.3,000,000/= without an ascertainable subject-matter value or certification of complexity
Yes; the minimum applicable fee under the 'other matters' scale was Kshs.75,000/= and a 40-times increment was unjustified
The value of the subject matter could not be ascertained from pleadings, settlement or judgment, and the trial Judge never certified the suit as involving difficult, complex or novel issues. Paragraph 1(b) of Schedule VI was therefore inapplicable, and the taxing officer was bound by the 'other matters' scale with a defended minimum of Kshs.75,000/=. An increment of 40 times was excessive and constituted a wholly erroneous estimate of costs.
Whether consequential errors infected the instruction fee on the counterclaim, getting-up fees, folio-dependent items and the fee for amending the plaint
Yes; the same error of principle affected the counterclaim instruction fee, the getting-up fee, folio-dependent items, and the Kshs.30,000/= 'instruction fee' for amending the plaint was a strange, unsanctioned charge
The counterclaim instruction fee of Kshs.3,000,000/= and the getting-up fee of Kshs.1,000,000/= flowed directly from the erroneous instruction fee. Items dependent on folios lacked particulars of folios or copied documents, leaving no basis for allowance. The Kshs.30,000/= item for amending the plaint had no anchorage in Schedule VI, which only permits a fee for drawing the amended plaint.
Who should bear the costs of the reference
The Defendants, being successful, were awarded costs
Costs follow the event under the proviso to Section 27 of the Civil Procedure Act. The court found no good reason to depart from the general rule that a successful party should ordinarily be awarded costs, and awarded the Defendants the costs of the reference.
Legal principles established
#- A judge may interfere with a taxing officer's decision only on an error of principle or where the fee awarded is manifestly excessive as to justify an inference of error of principle
- Where the value of the subject matter cannot be ascertained, the 'other matters' scale applies, with a minimum defended fee of Kshs.75,000/=, subject to the taxing officer's discretion to adjust upwards
- Costs follow the event under the proviso to Section 27 of the Civil Procedure Act unless the court, for good reason, directs otherwise
Court orders
#- 1.The Defendants' reference dated 19.12.2023 is allowed
- 2.The certificate of taxation dated 31.05.2023 is set aside
- 3.The Plaintiff's bill of costs dated 02.02.2023 is remitted to a different taxing officer for fresh taxation in accordance with the applicable provisions of Schedule VI of the Advocates Remuneration Order
- 4.The Defendants are awarded costs of the reference
- Jurisdiction invoked
- Paragraph 11 of the Advocates Remuneration Order (reference against taxing officer's decision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndegwa v Ol’kalou Water & Sanitation Company Limited & another (Environment & Land Case 107 of 2023) [2024] KEELC 3859 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3859/eng@2024-05-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.