Talam v Chepng’eno (Environment and Land Miscellaneous Application E010 of 2023) [2024] KEELC 5249 (KLR)
The bottom line
#Kenya's Environment and Land Court slashed an inflated legal fees award, confirming courts will not tolerate excessive instruction fees.
What this practically means
#Executive summary
#Key legal issues
#Whether the Taxing Officer erred in principle in awarding Kshs. 400,000 as instruction fees
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.
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.
Whether the taxation of item No. 4 (drawing the bill of costs) was correct
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.
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.
Whether the taxation of items 11 and 12 (service fees) was correct
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.
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.
Whether the Taxing Officer's misdescription of the bill of costs date and failure to give reasons vitiated the ruling
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.
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.
Legal principles established
#- 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
#- 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.Item No. 1 taxed at Kshs. 56,250/=
- 3.Item No. 4 taxed at Kshs. 360/=
- 4.Item No. 11 taxed at Kshs. 1,400/=
- 5.Item No. 12 taxed at Kshs. 1,400/=
- 6.The Applicant shall have costs of the reference
- Jurisdiction invoked
- Rule 11 of the Advocates Remuneration Order; Sections 1A, 3A and 3B of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.