Sehmi v Sehmi & 4 others (Environment & Land Case 659 of 2017) [2024] KEELC 4508 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a lawyer's fee award because the taxing officer valued the case using a document never produced in court.
What this practically means
#Executive summary
#Key legal issues
#Defective annexures to a supporting affidavit
The objection was upheld only for documents not already part of the court record; court pleadings already in custody need not be expunged
The court endorsed the principle that annexures must be sealed and marked with serial letters, but noted that most annexures were court pleadings already on record. Following the East African Court of Justice in the Zziwa case, such documents could be called suo moto; only extraneous unsealed documents were disallowed.
Extension of time for filing the reference
The one-day delay, occasioned by technical issues and uncontroverted, was excused and time extended
The applicant deponed that the ruling was emailed on 8th May 2023 causing a one-day delay; no respondent controverted this by affidavit. Relying on Article 259 of the Constitution, the court exercised its discretion to extend time and deem the reference filed within time.
Whether the taxing officer erred in principle in awarding instruction fees
Yes - the taxing master failed to set out the basic instruction fee, failed to state the factors considered, used an unproduced settlement agreement to value the subject matter, and failed to consider Schedule 1(a)-(c) distinctions; the ruling was set aside
The taxing master adopted Ksh.30,000,000 from a settlement agreement never produced in evidence instead of the escrow amount discernible from the plaint. Her award did not first set out the basic instruction fee or specify the factors considered, amounting to an error of principle warranting interference.
Whether separate instruction fees for multiple defendants was erroneous
No error of principle in taxing the bills of the 1st-3rd respondents jointly and the 4th and 5th separately, though the payment source should be a factor
Where several defendants file one pleading and are represented by one counsel they should file one bill; here the grouping adopted by the taxing master reflected representation and pleadings, so no error arose. However, the taxing master should consider as a factor that all amounts will be paid by one party.
Legal principles established
#- A court will not interfere with a taxing officer's award unless it is based on an error of principle or is manifestly excessive or low as to amount to an injustice
- The value of the subject matter for taxation must be ascertainable from the pleadings, judgment or settlement, not extraneous documents not produced in evidence
- A taxing master must first set out the basic instruction fee before increasing or reducing it, and give reasons for doing so
Court orders
#- 1.Annexures not already part of the court record are expunged; objection upheld only in respect of such documents
- 2.Time extended and the reference deemed duly filed within time
- 3.The ruling dated 2nd September 2021 is set aside
- 4.The matter is returned for taxation before a different taxing officer, who should take into account the principles outlined in the ruling
- 5.Each party to bear their own costs for the reference
- Jurisdiction invoked
- Reference against a taxing officer's ruling under the Advocates Remuneration Order; Article 259 of the Constitution invoked on extension of time
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sehmi v Sehmi & 4 others (Environment & Land Case 659 of 2017) [2024] KEELC 4508 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4508/eng@2024-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.