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ELCDismissedMalindi ELC Misc. Application No. 12 of 2023 (Reference)· [2024] KEELC 4886 (KLR)

Agricultural Development Corporation & another v JJ. Chesaro & Company Advocate (Environment and Land Miscellaneous (Reference) Application E003 of 2023) [2024] KEELC 4886 (KLR)

Environment and Land Court
20 June 2024
3,868 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Environment and Land Court in Malindi dismissed the Agricultural Development Corporation's challenge to a Kshs. 13.2 million legal fee bill, finding the taxing master made no error.

What this practically means

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Executive summary

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This was a reference by the client, Agricultural Development Corporation, under Rule 11 of the Advocates Remuneration Order against the decision of the taxing master (Hon. Ivy Wasike, DR) delivered on 9th August 2023 in Malindi ELC Misc. Application No. 12 of 2023, taxing the advocate-client bill at Kshs. 13,226,441.60. The applicant sought setting aside or variation of the decision, fresh taxation or remission, a stay of execution, and deduction of Kshs. 3,647,987/- paid as interim fees. It contended the taxing master misapplied Schedule 6, used an incorrect basis (3000 acres rather than special damages of Kshs. 33,000,000/-) for instruction fees, taxed without supporting documents after the replying affidavit was struck out, and failed to offset sums paid in the related ELC 16 of 2010 matter. The respondent defended the taxation and urged an upward adjustment based on a valuation of Kshs. 2,549,400,000/-. Makori J framed four issues, held that the Court had jurisdiction under Rule 11 to entertain the reference, confirmed the 2014 Remuneration Order applied, and found no error of principle: the taxing master properly considered the nature and value of the subject matter (over 3000 acres of prime land, 516 defendants), the complexity of the brief and the substantial reliefs obtained in the primary suit, including special damages of Kshs. 33,442,282/-, eviction and permanent injunction. Prior payments had already been deducted, and the Kshs. 25,000,000/- related to a distinct, fully resolved matter. The reference was dismissed with costs on 20th June 2024.

Key legal issues

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01

Jurisdiction of the Court over the reference against taxation

Holding

The Court has jurisdiction to hear the reference and may re-tax or remit the bill for fresh taxation

Reasoning

Rule 11 of the Advocates Remuneration Order permits an objector to apply to a judge against a taxing officer's decision. Relying on Rono v Chebet and Bernard Gichobi Njira, the court held that where there are no express provisions for challenging an assessment, the judge with jurisdiction to tax bills may intervene in the interests of justice. The expunging of the amended bill did not oust jurisdiction since the initial bill subsisted.

p. 5
02

Applicable Advocates Remuneration Order

Holding

The 2014 Order applied since the primary suit was filed in 2017; the taxing master did not err on this point

Reasoning

This issue was not contested by the parties. The taxing master applied paragraph 1b of the 6th Schedule of the 2014 Order, yielding a basic fee of Kshs. 695,000/-, before exercising discretion to raise instruction fees to Kshs. 6,000,000/-, citing Premchand Raichand and the W'Njuguna decision.

p. 5
03

Whether the taxing master erred in principle in fixing instruction fees at Kshs. 6,000,000/-

Holding

No error of principle; the figure was not excessive or capricious given the subject matter (over 3000 acres of prime land), 516 defendants, protracted litigation, and the substantial reliefs obtained

Reasoning

The taxing master considered the nature and importance of the subject matter, complexity, time expended, and the value of the subject matter. The court, applying the principles in W'Njuguna, found the discretion properly guided. The instruction fees item affected getting-up fees and VAT, which therefore also stood. Earlier payments were already deducted by the taxing master.

p. 7
04

Whether the bill was taxed without supporting documents after the replying affidavit was struck out

Holding

The contention did not persuade the court; the initial bill subsisted despite the expunged amended bill and bundles

Reasoning

The taxing master had expunged an amended bill of costs filed out of time, but the initial bill subsisted. The court held this could not be a basis to strike out the reference or invalidate the taxation, and the reference could not succeed on that ground.

p. 5

Legal principles established

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  • The High Court/ELC has jurisdiction, under Rule 11 of the Advocates Remuneration Order, to entertain a reference against a taxing master's decision and may re-tax or remit for re-taxation where the taxing officer erred in principle or the figure was manifestly excessive or significantly low
  • A taxing officer's discretion on instruction fees must be guided by legal principles; the court will only interfere where there is an error of principle or the award is manifestly excessive or significantly low
  • Where the primary suit was filed in 2017, the applicable tariff is the Advocates Remuneration Order 2014

Court orders

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  1. 1.The Reference is dismissed
  2. 2.The applicant/client to pay costs of the reference

Authorities

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Legislation

  • Advocates Remuneration OrderRule 10; Rule 11(1)-(4); Part 1b of Schedule 6; Part A Schedule 6
  • Advocates ActSection 51(2)
  • Civil Procedure RulesOrder 21 Rule 9A
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (14)

  • Nyamogo & Nyamogo Advocates v Pan Africa Insurance Company Limited and another
    [2016] eKLR
  • Premch and Raichand Limited & another v Quarry Services of East Africa Limited and another (Premchand Raichand Limited v Quarry Service of East Africa Limited & another)
    [1972] E.A 162
  • First American Bank of Kenya v Shah and others
    [2002] EA 64
  • Joreth limited v Muturi Kigano and Associates
    [2002] 1 EA 92
  • Masore Nyangau & Co Advocates v Kensalt Limited
    [2019] eKLR
  • Lubulellah and Co. Associates v N.K Brothers Limited
    [2014] eKLR
  • Kamunyori & Co. Advocates v Development Bank of Kenya Limited
    [2015] eKLR
  • Musyoka & Wambua Advocates v Rustam Hira Advocates
    [2006] eKLR
  • Catherine Njeri Angote v Lucy Wangari Ngugi & another
    [2021] eKLR
  • CMC Aviation Limited v Kenya Airways Limited (Crus Air Limited)
    [1978] eKLR
  • Otieno Rajat & Co. Advocate v Kenya Ports Authority
    [2001] eKLR
  • Vincent Kibiwott Rono v Abraham Kiprotich Chebet & another
    [2022] eKLR
  • Bernard Gichobi Njira v Kanini Njira Kathendu & another
    [2015] eKLR
  • Republic v Minister for Agriculture and 2 others Ex parte Samuel Muchiri W'Njuguna & 6 others
    [2006] eKLR
On appeal from
Environment and Land Court, Malindi (Taxing Master)
Misc. Application No. 12 of 2023
Jurisdiction invoked
Rule 11 of the Advocates Remuneration Order and Section 51(2) of the Advocates Act

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, "Agricultural Development Corporation & another v JJ. Chesaro & Company Advocate (Environment and Land Miscellaneous (Reference) Application E003 of 2023) [2024] KEELC 4886 (KLR)", Case Analysis (2024). Malindi ELC Misc. Application No. 12 of 2023 (Reference). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4886/eng@2024-06-20

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