Sheikh & another v Mas Construction Limited & 5 others (Environment and Land Case 1480 of 2014) [2024] KEELC 4351 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a Kshs 3.4 million costs ruling because the Taxing Master valued the case from the wrong source and re-taxed it before a different officer.
What this practically means
#Executive summary
#Key legal issues
#Competence of the Reference in the absence of the Taxing Master's ruling and reasons
The Reference was competent; the failure to attach the ruling or to receive reasons from the Taxing Master did not render it fatal, as the ruling was on record and reasons could be perused.
The court reviewed divergent authorities including IEBC v John Omollo, Kipkorir Titoo & Kiara and Evans Thiga Gaturu, concluding that absence of reasons is itself a good ground for a reference and does not preclude it. Since the ruling formed part of the record before the court, upholding an objection on the failure to attach it would elevate technicality over justice.
Whether the Taxing Master erred in principle in assessing instruction fees
Yes - by adopting the plaintiffs' suggested sum of Kshs 126,000,000 from a NEMA letter instead of first determining the value of the subject matter from the judgment, the Taxing Master committed a patent error in principle.
Applying Peter Muthoka v Ochieng, judgment having been entered, the judgment was the first port of call for ascertaining the value of the subject matter. The Taxing Master made no attempt to discern the value independently or consider the 1st Defendant's objections, instead relying on a contested figure not disclosed in the judgment, which per Kamunyori constitutes an error of principle.
Adequacy of the Taxing Master's treatment of the other disputed items
Simply stating that items were drawn to scale is insufficient; taxation requires independent and judicious evaluation with well-reasoned analysis.
The role of the Taxing Master necessitates independent and judicious evaluation of the bill and submissions. The court found the blanket statement that the bill was drawn to scale did not demonstrate the meticulous, reasoned analysis required of a judicial function of taxation.
Legal principles established
#- The value of the subject matter for purposes of instruction fees is to be ascertained from the pleadings, judgment or settlement, and where it cannot be so ascertained the Taxing Officer may exercise discretion.
- A judge on a reference should not interfere with a Taxing Officer's assessment unless there is an error of principle.
- The absence of reasons from the Taxing Master does not itself preclude a competent reference; failure to attach the taxation ruling is not fatal where the ruling is on record.
Court orders
#- 1.The Ruling of the Taxing Master dated 16th January, 2024 is hereby set aside.
- 2.The Plaintiffs' Bill of Costs dated 3rd October, 2023 is remitted for taxation before any other Taxing Officer other than Hon Vincent Kiplagat.
- 3.Each party to bear his/its own costs.
- Jurisdiction invoked
- Rule 11(2), (3) and (4) of the Advocates Remuneration Order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sheikh & another v Mas Construction Limited & 5 others (Environment and Land Case 1480 of 2014) [2024] KEELC 4351 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4351/eng@2024-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.