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ELCPartially AllowedChamber Summons Application dated 15th January, 2024· [2024] KEELC 5969 (KLR)

Grace Bible Church Machakos & another v Kyalo & another (Environment and Land Miscellaneous Application E029 of 2021) [2024] KEELC 5969 (KLR)

High Court of Kenya
18 September 2024
COChristine Ochieng
1,931 words in judgment
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The bottom line

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Kenya's High Court set aside a legal costs award because the lawyer's fee was too high for such a simple application, and sent it back for fresh taxation.

What this practically means

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Executive summary

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This was a reference by way of Chamber Summons dated 15th January 2024, brought under Rule 11(2) of the Advocates (Remuneration) Order 2014 and Order 21 Rule 9D of the Civil Procedure Rules, challenging a Taxing Officer's decision of 6th April 2023 taxing the Respondents' Bill of Costs dated 15th February 2022 at approximately Kshs.84,820. The 2nd Objector contended that the Bill was not taxed per Schedule 6 of the Advocates Remuneration Order 2014, that the Taxing Officer abrogated Order 21 Rule 9D, and that the court failed to consider the Objector's submissions dated 29th August 2022. The Respondent, Francis Ndambuki Sila, opposed, asserting the Bill arose from a dismissed application for enlargement of time to appeal, submissions were considered, no particular items were pinpointed as erroneous, and the Advocates Remuneration Order provides only minimum fees. Justice Christine Ochieng identified a single issue: whether the taxing decision should be set aside. Applying Nyangito, Peter Muthoka, Muchiri W'Njuguna and Joreth Limited, she held the instructions fees awarded for item 1 were unjustified because the underlying application merely sought enlargement of time to file a Memorandum of Appeal with no complexity. This constituted an error in principle. The court set aside the taxing decision of 6th April 2023, remitted the Bill of Costs to a different Deputy Registrar for fresh taxation, and made no order as to costs.

Key legal issues

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01

Whether the Taxing Officer's award of instruction fees on the impugned Bill of Costs was justified

Holding

The instruction fees awarded for item 1 were excessive because the application taxed was a simple one seeking enlargement of time to file a Memorandum of Appeal; this constituted an error in principle

Reasoning

The court perused the impugned Bill of Costs and the Taxing Officer's Ruling and found the amount awarded as item 1 (instructions fees) unjustified because there was no complex issue involved in the application for enlargement of time to file a Memorandum of Appeal. The other items were taxed to scale and left undisturbed. Having found the award for item 1 excessive, the court concluded the Taxing Officer had erred in principle and exercised its discretion under Rule 11 to set aside the decision and remit the Bill for fresh taxation before a different Deputy Registrar.

p. 4

Legal principles established

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  • A court may interfere with a Taxing Officer's decision only where it is shown to be based on an error of principle or the fee awarded is manifestly excessive so as to justify an inference of error of principle
  • Instructions fees should reflect the amount of work done, the subject matter of the suit and prevailing economic conditions

Court orders

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  1. 1.Set aside the decision of the Taxing Officer dated 6th April, 2023 in respect to the Respondents' Bill of Costs dated the 15th February, 2022
  2. 2.Remit the Bill of Costs dated 15th February, 2022 to a different Deputy Registrar for fresh taxation
  3. 3.Make no order as to costs

Authorities

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Legislation

  • Advocates (Remuneration) Order 2014Rule 11(2)
  • Advocates Remuneration Order, 2014Schedule 6
  • Civil Procedure Rules, 2010 (Revised 2020)Order 21 Rule 9D

Cases cited (7)

  • Eastland Hotel Limited v Wafula Simiyu & Co. Advocates
    (2014) eKLR
  • Judicial Service Commission v Gladys Boss Shollei & Another
    (2014) eKLR
  • Justice Amraphael Mbogholi Msagha v Chief Justice & 7 others
    Nairobi HCMA No. 1062 of 2004
  • Nyangito & Co. Advocates v. Doinyo Lessos Creameries Ltd.
    HC Misc No. 843 of 2013; [2014] eKLR
  • Peter Muthoka & Another v Ochieng & 3 Others
    Civil Appeal No. 328 of 2017; [2019] eKLR
  • Republic v Ministry of Agriculture and 2 others: Exparte Muchiri W'Njuguna & others
    [2006] eKLR
  • Joreth Limited v Kigano & Associates
    [2002] 1 E.A. 92
Jurisdiction invoked
Rule 11(2) of the Advocates (Remuneration) Order 2014 and Order 21 Rule 9D of the Civil Procedure Rules

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, "Grace Bible Church Machakos & another v Kyalo & another (Environment and Land Miscellaneous Application E029 of 2021) [2024] KEELC 5969 (KLR)", Case Analysis (2024). Chamber Summons Application dated 15th January, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5969/eng@2024-09-18

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