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ELCDismissedChamber Summons Application dated 25th October 2023 in Murang'a ELC No. 374 of 2017 (formerly Nairobi HC ELC No. 343 of 2012)· [2024] KEELC 4902 (KLR)

Mbelezi v Karanja & another (Environment and Land Miscellaneous.(Reference) Application E003 of 2023) [2024] KEELC 4902 (KLR)

Environment and Land Court
19 June 2024
LGL. Gacheru
3,435 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to disturb a taxing officer's costs award because the losing party showed no error of principle.

What this practically means

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Executive summary

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The Applicant, the unsuccessful 1st Defendant in Murang'a ELC No. 374 of 2017 (formerly Nairobi HC ELC No. 343 of 2012), filed a Chamber Summons reference under Rule 11 of the Advocates' Remuneration Order challenging the Taxing Officer's ruling of 5th October 2023, which allowed the 1st Respondent's Bill of Costs dated 16th June 2023 at Kshs.231,888. He sought setting aside of the ruling on numerous items and re-taxation, contending that the basic instruction fees were wrongly raised from Kshs.75,000 to Kshs.100,000 without justification, that getting-up fees were excessive, and that various items were fictitious, excessive or wrongly entered against him. The 1st Respondent opposed, arguing the reference was time-barred, having been filed 27 days after the reasons were issued, and that the taxation was judicious. The court framed two issues: limitation and entitlement to the orders sought. On limitation, it found the reference filed on 30th October 2023 was within 14 days of the Taxing Master's reasons given on 19th October 2023. On the merits, applying Joreth Limited v Kigano & Associates and Bank of Uganda v Banco Arabe Espanol, the court held that interference requires an error of principle; the length of the proceedings (filed in 2010, determined in 2022) justified the enhancement of instruction fees, and the getting-up fees complied with Schedule VI Paragraph 2 of the Advocates' Remuneration Order. Finding no error of principle, the court upheld the taxed costs and dismissed the reference entirely with costs to the 1st Respondent.

Key legal issues

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01

Limitation under Rule 11 of the Advocates' Remuneration Order

Holding

The Reference, filed 30th October 2023, was within 14 days of the Taxing Officer giving reasons on 19th October 2023, and was therefore not time-barred

Reasoning

The applicant sought reasons by letter dated 18th October 2023; the Taxing Master responded in her own hand on 19th October 2023 that the reasons were contained in the Ruling. Counting 14 days from that date, the reference filed on 30th October 2023 was in time, supported by an e-filing payment receipt marked RM6.

p. 5
02

Whether the Taxing Officer erred in principle in raising instruction fees from Kshs.75,000 to Kshs.100,000

Holding

No error of principle; the increase reflected the length of the proceedings (filed in 2010, determined in 2022) and was not whimsical

Reasoning

Guided by Joreth Limited v Kigano & Associates and related authorities, the court held the period of prosecution of the suit was a relevant factor. The modest increase of Kshs.25,000 did not constitute a wrongful exercise of discretion, and the reasons were stated in the taxing ruling.

p. 6
03

Lawfulness of the getting-up fees of Kshs.33,333

Holding

Lawful as it does not exceed one-third of the instruction fees, per Schedule VI Paragraph 2 of the Advocates' Remuneration Order

Reasoning

Since the award of Kshs.100,000 as instruction fees was found lawful, one-third of that sum (Kshs.33,333) as getting-up fees complies with Schedule VI Paragraph 2 of the Advocates' Remuneration Order, notwithstanding the applicant's contention that the base should have been Kshs.75,000.

p. 6

Legal principles established

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  • A court will not interfere with a Taxing Officer's award of costs unless an error of principle is shown
  • The length of the trial is a circumstance meriting consideration by a Taxing Officer in assessing instruction fees

Court orders

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  1. 1.The Reference is dismissed entirely with costs to the 1st Respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 3A, 3B, 27
  • Advocates' Remuneration OrderRule 11; Schedule VI Paragraph 2
  • Civil Procedure Amendment RulesOrder 21 Rule 9A (2020)

Cases cited (5)

  • Republic vs. Ministry of Agriculture & 2 others Ex parte Muchiri W'Njuguna & 6 Others
    {2006} eKLR
  • Phemchand Raichand Ltd and Another vs Quarry Services of East Africa Ltd and Another
    {1972} EA 162
  • KANU National Elections Board & 2 others vs Salah Yakub Farah
    [2018] eKLR
  • Joreth Limited vs Kigano & Associates
    [2002] eKLR
  • Bank of Uganda vs. Banco Arabe Espanol
    SC Civil Application No. 23 of 1999
Jurisdiction invoked
Rule 11 of the Advocates' Remuneration Order; Sections 1A, 3A, 3B of the Civil Procedure 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, "Mbelezi v Karanja & another (Environment and Land Miscellaneous.(Reference) Application E003 of 2023) [2024] KEELC 4902 (KLR)", Case Analysis (2024). Chamber Summons Application dated 25th October 2023 in Murang'a ELC No. 374 of 2017 (formerly Nairobi HC ELC No. 343 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4902/eng@2024-06-19

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