Gazemba Wekesa & Co Advocates v Pinnie Agency Limited (Miscellaneous Cause E053 of 2022) [2024] KEELC 4200 (KLR)
The bottom line
#The Environment and Land Court threw out a Kshs 1.5 million fee award because the taxing officer failed to explain her reasoning, ordering fresh taxation.
What this practically means
#Executive summary
#Key legal issues
#Whether the Taxing Master erred in principle in awarding Kshs. 1,500,000 instruction fees without considering the value of the subject matter
The value of the subject matter was discernible from the tender documents, but Schedule 5 leaves the instruction fee entirely to the Taxing Officer's discretion; however, the discretion must be exercised judicially with reasons relating criteria to the facts
The court agreed the tender value (Kshs. 5 billion) was discernible but rejected the 1.5% formula as it applies only under Schedule 6. The court nonetheless found the exercise of discretion wanting because the Taxing Master did not demonstrate how the principles in Part II of Schedule 5 related to the specific facts, echoing Ojwang J's guidance in the Muchiri W'Njuguna case.
Whether the Taxing Master's failure to give reasons for disallowing items 4, 5, 6 and 52 to 61 constituted an error of principle
Yes; reasons for disallowing items must be clearly documented and stated
The court held that restating the applicable principles is insufficient; a Taxing Master must relate the facts of the case to the principles applied and must clearly state reasons for any items disallowed so parties can discern why the disallowance was made.
Legal principles established
#- A court will only interfere with a Taxing Officer's decision where it is based on an error of principle or the fee awarded is manifestly excessive
- Discretionary power must be exercised judicially and supported by clear reasons relating the facts to the principles applied
- Reasons for disallowing items in a bill of costs must be clearly documented
Court orders
#- 1.The taxation dated 21st November 2021 (ruling of 21st November 2022) is set aside
- 2.Taxation to be carried out by a fresh Taxing Master guided by the principles set out in the ruling, including relating criteria to specific facts and giving reasons for any items not allowed
- 3.No order as to costs
- Jurisdiction invoked
- Reference against a Taxing Master's ruling under the Advocates (Remuneration) Order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gazemba Wekesa & Co Advocates v Pinnie Agency Limited (Miscellaneous Cause E053 of 2022) [2024] KEELC 4200 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4200/eng@2024-05-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.