Agricultural Development Corporation & another v JJ. Chesaro & Company Advocate (Environment and Land Miscellaneous (Reference) Application E003 of 2023) [2024] KEELC 4886 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction of the Court over the reference against taxation
The Court has jurisdiction to hear the reference and may re-tax or remit the bill for fresh taxation
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.
Applicable Advocates Remuneration Order
The 2014 Order applied since the primary suit was filed in 2017; the taxing master did not err on this point
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.
Whether the taxing master erred in principle in fixing instruction fees at Kshs. 6,000,000/-
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
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.
Whether the bill was taxed without supporting documents after the replying affidavit was struck out
The contention did not persuade the court; the initial bill subsisted despite the expunged amended bill and bundles
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.
Legal principles established
#- 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
#- 1.The Reference is dismissed
- 2.The applicant/client to pay costs of the reference
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.