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ELCPartially AllowedNot stated in judgment· [2024] KEELC 4200 (KLR)

Gazemba Wekesa & Co Advocates v Pinnie Agency Limited (Miscellaneous Cause E053 of 2022) [2024] KEELC 4200 (KLR)

Environment and Land Court
2 May 2024
1,825 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court (Judy Omange J) determined an unopposed reference challenging a Taxing Master's ruling of 21st November 2022 on an advocate-client bill of costs dated 25th June 2021, taxed at Kshs. 1,780,083.8. The applicant, swearing on behalf of petitioners, raised four complaints: the award of Kshs. 1,500,000 instruction fees without regard to the value of the subject matter (a Kshs. 5 billion affordable housing tender); erroneous findings on folios in items 2 and 62; a misdirection that the subject matter value was unascertainable; and the disallowance of items 4, 5, 6 and 52 to 61 without reasons. The court reiterated that it will not interfere with a Taxing Officer's award unless it is based on an error of principle or is manifestly excessive, citing Republic v Ministry of Agriculture ex parte Muchiri W'njuguna and Joreth Ltd v Kigano & Associates. It accepted that the tender value was discernible from the documents but held that Schedule 5, unlike Schedule 6, does not mandate 1.5% of subject value, leaving the award to discretion. However, discretion must be exercised judiciously with clear reasons tying the criteria to the established facts, and reasons for disallowed items must be documented. Finding the discretion was not properly demonstrated, the court set aside the taxation, ordered re-taxation by a fresh Taxing Master guided by the stated principles, and made no order as to costs as the reference was undefended.

Key legal issues

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01

Whether the Taxing Master erred in principle in awarding Kshs. 1,500,000 instruction fees without considering the value of the subject matter

Holding

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

Reasoning

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.

p. 3
02

Whether the Taxing Master's failure to give reasons for disallowing items 4, 5, 6 and 52 to 61 constituted an error of principle

Holding

Yes; reasons for disallowing items must be clearly documented and stated

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The taxation dated 21st November 2021 (ruling of 21st November 2022) is set aside
  2. 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. 3.No order as to costs

Authorities

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Legislation

  • Advocates (Remuneration) OrderPart II of Schedule 5
  • Advocates (Remuneration) OrderSchedule 6

Cases cited (2)

  • Republic versus Ministry of Agriculture & 2 others Ex parte Muchiri W'njuguna & 6 Others
    [2006] eKLR
  • Joreth Limited Vs Kigano & Associates
    (2002) eKLR
Jurisdiction invoked
Reference against a Taxing Master's ruling under 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, "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.