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ELCPartially AllowedKericho ELC No. 1 of 2023 (Reference dated 31st October, 2023)· [2024] KEELC 5249 (KLR)

Talam v Chepng’eno (Environment and Land Miscellaneous Application E010 of 2023) [2024] KEELC 5249 (KLR)

Environment and Land Court
11 July 2024
6,596 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court slashed an inflated legal fees award, confirming courts will not tolerate excessive instruction fees.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kericho (L. A. Omollo, J) determines the Applicant's reference under paragraph 11 of the Advocates Remuneration Order challenging the Taxing Officer's ruling of 17th October 2023 taxing the Respondent's party and party bill of costs dated 18th July 2023 at Kshs. 492,250. The Applicant argued the Taxing Officer erred in principle by awarding Kshs. 400,000 as instruction fees despite finding the suit neither complex nor novel; by taxing drawing fees above the prescribed Kshs. 180 per folio; and by awarding Kshs. 5,000 for service effected by email. He also noted the Taxing Officer's ruling misdescribed the date of the bill taxed. The court confirmed the reference was properly before it despite the Taxing Officer not furnishing separate reasons, and held the misdescription of the bill's date was a non-fatal oversight. On the merits, the court found the value of the subject matter could not be ascertained from the pleadings and rejected the Respondent's argument that filing in the ELC presumed a value above Kshs. 20,000,000. Applying Schedule 6, the instruction fee was retaxed at Kshs. 75,000 reduced by 25% (the suit having abated without full trial) to Kshs. 56,250. Item 4 was retaxed at Kshs. 360 for two folios and items 11 and 12 at Kshs. 1,400 each for email service. Items 5-7 (attendances) were left undisturbed for lack of basis for interference. The reference succeeded in part and the Applicant was awarded costs of the reference.

Key legal issues

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01

Whether the Taxing Officer erred in principle in awarding Kshs. 400,000 as instruction fees

Holding

Yes - the amount was manifestly excessive. The value of the subject matter was not ascertainable from the pleadings, the suit abated without full trial, so the minimum of Kshs. 75,000 under Schedule 6 'other matters' applied, reduced by 25% to Kshs. 56,250.

Reasoning

The Taxing Officer acknowledged the suit was neither complex nor novel and never proceeded to full trial, yet applied paragraph 1(j) and raised the fee from Kshs. 75,000 to Kshs. 400,000 without laying any basis. The Respondent's claim that filing in the ELC presumed a value over Kshs. 20,000,000 was rejected as misguided since value could not be ascertained from the pleadings. Following Premchand Raichand and Joreth Ltd v Kigano, the award was so high as to amount to an error of principle and injustice.

p. 12
02

Whether the taxation of item No. 4 (drawing the bill of costs) was correct

Holding

No - the bill had two folios and at Kshs. 180 per folio the item should have been taxed at Kshs. 360, not Kshs. 1,100.

Reasoning

Schedule 6 paragraph 4(d) prescribes Kshs. 180 per folio for a bill of costs, and paragraph 17 defines a folio as 100 words with any part charged as one folio. The bill of costs consisted of two folios, so the correct fee was Kshs. 360. The Taxing Officer's award of Kshs. 1,100 as claimed departed from the prescribed rate.

p. 13
03

Whether the taxation of items 11 and 12 (service fees) was correct

Holding

No - service was effected by email, and the applicable Schedule 6 paragraph 9 fee is Kshs. 1,400, so the award of Kshs. 5,000 'as drawn' was erroneous.

Reasoning

Relying on Aoro v Were, service via email is still service attracting the prescribed fee. Since service in the underlying suit was by email under Order 5 Rule 22(b) of the Civil Procedure (Amendment) Rules 2020, the court substituted the 'as drawn' figure of Kshs. 5,000 with the statutory Kshs. 1,400 for each item.

p. 13
04

Whether the Taxing Officer's misdescription of the bill of costs date and failure to give reasons vitiated the ruling

Holding

No - the reference remained competent; the misdescription was a non-fatal oversight and absence of reasons is not fatal where the ruling itself contains reasons.

Reasoning

Only one bill of costs (dated 18th July, 2023) was filed in Kericho ELC E014 of 2023, so the erroneous reference to a bill dated 27th April/27th February 2023 was an oversight cured under the overriding objective and Article 159. On reasons, following Vincent Kibiwott Rono, failure to furnish separate reasons under paragraph 11(2) does not defeat a reference since a ruling contains reasons for the decision.

p. 8

Legal principles established

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  • A judge on a reference will not interfere with a Taxing Officer's discretion unless the Taxing Officer erred in principle
  • Where the value of the subject matter is not ascertainable and the suit did not proceed to full trial, the instruction fee under Schedule 6 'other matters' (Kshs. 75,000) applies, reduced by 25% under paragraph 1(b)
  • Failure by a Taxing Officer to give reasons for a decision is not fatal to a reference
  • A misdescription of the bill of costs date in the concluding part of a taxation ruling is a non-fatal oversight where only one bill of costs was on file
  • Where service of court documents is effected by email, the taxable service fee is Kshs. 1,400 under Schedule 6 paragraph 9, not a higher amount taxed 'as drawn'

Court orders

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  1. 1.The Taxing Officer's decision rendered on 17th October, 2023 pertaining to taxation of item No. 1, 4, 11 and 12 of the Bill of costs dated 18th July, 2023 is set aside and those items retaxed
  2. 2.Item No. 1 taxed at Kshs. 56,250/=
  3. 3.Item No. 4 taxed at Kshs. 360/=
  4. 4.Item No. 11 taxed at Kshs. 1,400/=
  5. 5.Item No. 12 taxed at Kshs. 1,400/=
  6. 6.The Applicant shall have costs of the reference

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 3B
  • Civil Procedure (Amendment) Rules, 2020Order 21 Rule 9A; Order 5 Rule 22(b)
  • Advocates Remuneration OrderParagraphs 11(1)-(4), 17; Schedule 6 paragraphs 1(b), 1(j), 4(d), 9; Rule 10
  • Magistrate's Court ActSections 9(a), 26, 71(a)
  • Environment and Land Court ActSections 13, 26
  • Constitution of KenyaArticle 162(2); Article 159
  • Oaths and Statutory Declaration RulesRule 9

Cases cited (17)

  • Premchand Raichand Ltd v Quarry Services of East Africa Ltd (No. 3)
    [1972] EA 162
  • Joreth Limited v Kigano & another
    [2002] EA 92 (NRB CA Civil Appeal No. 66 of 1999)
  • Brampton Investment Limited v Attorney General & 2 Others
    [2013] eKLR
  • Kamunyori & Company Advocates v Development Bank of Kenya Limited
    Civil Appeal 206 of 2006
  • Ochieng, Onyango, Kibet and Ohaga Advocates v Adopt Light Ltd
    HC Misc. 729 of 2006
  • Karen & Associates Advocates v Caroline Wangari Njoroge
    [2019] eKLR
  • Republic v Minister for Agriculture & 2 Others Ex parte Samuel Muchiri W'Njuguna & 6 others
    [2006] eKLR
  • KTK Advocates v Nairobi City County
    (Miscellaneous Application E005 of 2021) [2023] KEHC 22242 (KLR)
  • Visser v Gubb
    1981 (3) SA 753 (c) 754 H - 755 C
  • Eddy Nicholas O. Orinda T/A One and Associates Advocates v Victoria Commercial Bank Limited
    [2020] eKLR
  • Kipkorir, Tito & Kiara Advocates v Deposit Protection Fund Board
    NRB CA Civil Appeal No. 220 of 2004 [2005] eKLR
  • Vincent Kibiwott Rono v Abraham Kiprotich Chebet & another
    [2022] eKLR
  • Bernard Gichobi Njira v Kanini Njira Kathendu & another
  • Elijah Ireri t/a Ireri & Company Advocates v County Government of Embu
    [2021] eKLR
  • Peter Muthoka & another v Ochieng & 3 others
    [2019] eKLR
  • Wamanda & 2 others v Egoli Estades Limited & another
    (Environment and Land Case Civil Suit 103 of 2020) [2024] KEELC 1416 (KLR)
  • Aoro v Were
    (Miscellaneous Reference Application E019 of 2022) [2022] KEHC 14628 (KLR)
Jurisdiction invoked
Rule 11 of the Advocates Remuneration Order; Sections 1A, 3A and 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, "Talam v Chepng’eno (Environment and Land Miscellaneous Application E010 of 2023) [2024] KEELC 5249 (KLR)", Case Analysis (2024). Kericho ELC No. 1 of 2023 (Reference dated 31st October, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5249/eng@2024-07-11

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