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ELCAllowedChamber summons dated 29th May 2023 (Reference from Taxing Master's decision dated 2nd February 2023)· [2024] KEELC 4642 (KLR)

Seventh -Day Adventist Church E.A Ltd (Nairobi East SDA Church) v Strathmore Edu. Centre & 2 others (Environment and Land Miscellaneous Application 303 of 2011) [2024] KEELC 4642 (KLR)

Environment and Land Court
6 June 2024
2,603 words in judgment
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The bottom line

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Kenya's Environment and Land Court set aside Kshs 1.6 million in legal fees, ruling that taxing officers must justify high instruction fees with actual reasons.

What this practically means

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Executive summary

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This was a reference by the Plaintiff under Rule 11 of the Advocates (Remuneration) Order challenging the Taxing Master's decision of 2nd February 2023 taxing Items 1 and 2 of the 2nd and 3rd Defendants' Bills of Costs, namely instruction fees at Kshs 1,200,000 and getting up fees at Kshs 400,000 each. The Applicant contended the Taxing Master erred in principle: the suit was a straightforward trespass matter over 4 acres, not complex, and she failed to set out basic instruction fees or identify elements of complexity. The Respondents opposed, arguing the reference was out of time under paragraph 11 of the Order, that the value of the subject matter was unascertainable so the Taxing Master properly exercised discretion, and that the Applicant bore the burden of proving an error of principle. The court framed two issues. On competency, it held the fourteen-day period in paragraph 11(2) runs from receipt of the reasons for the decision; the Applicant received the ruling with reasons on 26th May 2023 and filed on 29th May 2023, so no leave was needed. On the merits, applying the Premchand Raichand principles, the court held the orders sought were not complex, only seven witnesses testified, the land was only 4 acres on Jogoo Road, and the Taxing Master did not disclose her estimated value of the property justifying the award; her discretion was therefore not exercised judiciously. The reference was allowed, the impugned taxation set aside, the matter remitted for taxation before any current Deputy Registrar of the Environment and Land Court, with each party bearing their own costs of the reference.

Key legal issues

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01

Whether the reference was filed out of time contrary to paragraph 11 of the Advocates Remuneration Order

Holding

The reference was filed within time because the fourteen days under paragraph 11(2) run from receipt of the reasons for the taxation decision, which the Applicant received on 26th May 2023; no leave was needed.

Reasoning

Although the ruling was delivered on 2nd February 2023, the Applicant only received the written ruling containing the reasons on 26th May 2023, as evidenced by correspondence and emails with the Deputy Registrar copied to all advocates. Paragraph 11(2) allows fourteen days from receipt of the reasons to apply by chamber summons. Filing on 29th May 2023 was therefore within the period and no extension of time was required.

p. 4
02

Whether the Taxing Officer erred in principle in taxing instruction fees at Kshs 1,200,000 and getting up fees at Kshs 400,000

Holding

The Taxing Master erred in principle: the matter was not complex, the dispute concerned only 4 acres, and she failed to disclose any estimated value of the property justifying the award; her discretion was not exercised judiciously.

Reasoning

The court found the orders sought (nullification of subdivision and allocation of 4 acres) were not complex, only seven witnesses testified, and the land in dispute was small. The Taxing Master did not disclose her estimate of the property's value to warrant Kshs 1,200,000 as instruction fees, meaning she failed to apply her discretion judiciously as required by the Premchand Raichand principles. The impugned sums and the consequent getting up fee were therefore set aside and the matter remitted for retaxation.

p. 5

Legal principles established

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  • Where the value of the subject matter cannot be ascertained from the pleadings, the instruction fee is arrived at by the exercise of the Taxing Master's discretion, which must be exercised judiciously and not whimsically.
  • The fourteen-day period in paragraph 11(2) of the Advocates (Remuneration) Order runs from receipt of the taxing officer's reasons, not from the date of the ruling itself.

Court orders

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  1. 1.The reference is allowed
  2. 2.The matter shall be referred back for taxation before any of the current Deputy Registrars of the Environment and Land Court
  3. 3.Each party to bear their Costs of the Reference
Jurisdiction invoked
Rule 11 of the Advocates (Remuneration) Order - reference from a Taxing Master's decision to a judge

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, "Seventh -Day Adventist Church E.A Ltd (Nairobi East SDA Church) v Strathmore Edu. Centre & 2 others (Environment and Land Miscellaneous Application 303 of 2011) [2024] KEELC 4642 (KLR)", Case Analysis (2024). Chamber summons dated 29th May 2023 (Reference from Taxing Master's decision dated 2nd February 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4642/eng@2024-06-06

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