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ELCPartially AllowedChamber Summons dated 18th May, 2023· [2024] KEELC 3912 (KLR)

Mwenda & another v Njuraruhi & 6 others (Environment & Land Case 313 of 2018) [2024] KEELC 3912 (KLR)

Environment and Land Court
18 April 2024
AOA. Omollo
2,336 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff, dissatisfied with the Taxing Master's decision of 22nd February 2023 taxing item 1 of the Defendants' Bill of Costs dated 17th March 2022 at instruction fees of Kshs. 950,000 (based on an asserted property value of Kshs. 50,000,000), filed a reference by Chamber Summons dated 18th May 2023 seeking extension of time, stay, setting aside of the decision and fresh taxation. The Defendants opposed, contending the application was incompetent and that the applicant had failed to explain the three-month delay and had not defended the taxation. The court framed two questions: whether to extend time and whether the reference should succeed. On the first, it held the applicant was not a diligent litigant because the law does not require a party to wait for a response before filing a reference, but admitted the reference out of time because no execution had commenced and the respondent could be compensated by costs. On the merits, the court found the plaint did not disclose the value of the suit property (L.R No. 4953/71 Thika); the taxing master had properly exercised her discretion but wrongly relied on the defendants' proposed value rather than the value on record. Applying the principles in Bank of Uganda v Banco Arabe Espanol and the Muchiri W'Njuguna guidelines, the court held the instruction fee manifestly excessive, allowed the reference, and re-assessed the instruction fee from Kshs. 950,000 to Kshs. 200,000, with costs of the reference to the Respondents in any event. Judgment delivered at Nairobi on 18th April 2024 by A. Omollo J.

Key legal issues

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01

Extension of time to file a reference out of time

Holding

Time extended; delay of three months not a bar where no execution has commenced and the respondent can be compensated by costs.

Reasoning

The applicant wrote to the taxing master seeking reasons but, instead of filing a reference when no response came, wrote reminders - conduct the court held lacked diligence, since the law does not require a party to wait for a response before filing a reference. Nonetheless, since no execution process had commenced, the reference was already filed, and the respondent would have an opportunity to defend it, the court admitted the reference out of time, compensating the respondent by costs.

p. 4
02

Whether the taxing master erred in principle in awarding instruction fees of Kshs. 950,000

Holding

Yes - the taxing master relied on the value proposed by the defendants rather than the value on record; the fee was manifestly excessive and re-assessed to Kshs. 200,000.

Reasoning

The plaint did not state the value of the property; the taxing master properly exercised discretion but relied on the defendants' proposed value of Kshs. 50,000,000, which was not supported by evidence. Given the modest nature of the case - no more than two witnesses, no skilled research required - and the value stated on record, the court applied the Muchiri W'Njuguna guidelines and found the instruction fee manifestly excessive, warranting interference on the ground of error in principle.

p. 5

Legal principles established

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  • A court will not interfere with a taxing master's discretion unless the taxing officer erred in principle; the law does not require a party to wait for a response to a request for reasons before filing a reference.
  • The value of the subject matter for taxation ought to be determined from the pleadings, judgment or settlement, failing which the taxing officer may exercise discretion.

Court orders

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  1. 1.The reference filed out of time is admitted for hearing
  2. 2.The reference is allowed
  3. 3.The instruction fee is re-assessed from Kshs. 950,000 to Kshs. 200,000
  4. 4.The costs of this reference to the Respondents in any event

Authorities

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Legislation

  • Advocates Remuneration Order (ARO)Schedule 6; Paragraph 11

Cases cited (7)

  • Addax Kenya Limited Vs. NEMA & Another
    (2017) eKLR
  • Lalji Mehji Pate & Company Pate & Company Limited Vs PCEA Foundation & Another
    (2020) eKLR
  • First American Bank of Kenya Ltd Vs. Gulab P. Shah & 2 Others
    (2002) eKLR
  • County Assembly of Kisumu versus County Government of Kisumu and 8 others
    (2017) eKLR
  • Del Monte Kenya Limited vs Kenya National Chamber of Commerce and Industry, Muranga chapter and 2 others
    (2021) eKLR
  • Bank of Uganda versus Banco Arabe Espanol
    SC Civil Application No. 23 of 1999
  • Republic vs. Ministry of Agriculture & 2 Others Ex parte Muchiri W'Njuguna & 6 Others
    (2006) eKLR
Jurisdiction invoked
Inherent jurisdiction to extend time and entertain a reference against a Taxing Master's decision (paragraph 11 of the Advocates Remuneration Order)

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, "Mwenda & another v Njuraruhi & 6 others (Environment & Land Case 313 of 2018) [2024] KEELC 3912 (KLR)", Case Analysis (2024). Chamber Summons dated 18th May, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3912/eng@2024-04-18

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