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ELCAllowedELC Appeal No. 32 of 2019 (Reference)· [2024] KEELC 6133 (KLR)

Kotut v Kipngok & Another (Environment and Land Miscellaneous Application E019 of 2024) [2024] KEELC 6133 (KLR)

Environment and Land Court
25 September 2024
3,918 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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By a Chamber Summons dated 30th April 2024, the Applicant sought to set aside the Taxing Master's ruling of 17th April 2024 taxing the Respondent's Bill of Costs at KShs.280,391/-, and remittal for fresh taxation before another taxing master. The Bill related to costs awarded to the Respondent after successfully opposing the Applicant's garnishee proceedings in ELC Appeal No. 32 of 2019, in which the Applicant had sought to execute costs of KShs.390,000/-. The Respondent filed a preliminary objection arguing the reference was filed out of time, that reasons for the taxation had not been sought, and that it offended the exhaustion-of-remedies rule under Rule 11 of the Advocates (Remuneration) Order. The court framed two issues: whether the reference offended Rule 11, and whether the Taxing Master erred in principle. On the first, the court found that since the taxing ruling was self-contained with reasons, no fresh reasons needed to be sought, and verified from the e-filing portal that the application was filed only one day late; exercising its discretion under Rule 11(4), it deemed the reference filed in time and dismissed the preliminary objection. On the merits, the court held the Taxing Master erred in principle by applying Joreth Ltd valuation principles and awarding KShs.200,000/- instruction fees when the prescribed garnishee fees under Paragraph 14 of Schedule 6A governed, and by awarding KShs.66,666/- getting up fees without the required judge's certificate and in respect of a post-judgment application rather than the appeal. The taxing decision was set aside and the bill remitted to a different taxing master, with costs to the Applicant.

Key legal issues

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01

Whether the reference offended Rule 11 of the ARO as to the requirement to seek reasons and the 14-day timeline

Holding

The reference was competent. Reasons were already contained in the ruling so no fresh reasons were needed; the one-day delay was not inordinate and the court exercised its discretion under Rule 11(4) to deem the reference filed in time.

Reasoning

Rule 11(1) is permissive ('may'). Where the taxing master's ruling is self-explanatory, as per Evans Thiga Gaturu and Kipkorir, Titoo & Kiara, seeking fresh reasons is unnecessary. The court verified on the e-filing portal that the application dated 30th April 2024 was filed on 2nd May 2024 - 15 days after the ruling of 17th April 2024, a delay of only one day. Though no extension of time was sought, the court invoked Rule 11(4) and deemed the reference duly filed on time.

p. 5
02

Whether the Taxing Master erred in principle in assessing instruction fees and getting up fees

Holding

Yes. The Bill of Costs arose from garnishee proceedings, not the appeal, so the prescribed garnishee fees under Paragraph 14 of Schedule 6A applied, and no judge's certificate supported a getting up fee.

Reasoning

The costs taxed were those awarded in dismissed garnishee proceedings for KShs.390,000/-, not costs of the appeal over land valued at KShs.52,000,000/-. Joreth Ltd valuation principles therefore did not apply, as garnishee instruction fees are prescribed. Getting up fees under Paragraph 3 of Schedule 6A require a certificate from the judge trying the appeal; none was issued, and the bill related to a post-judgment application. The award was manifestly excessive and exorbitant.

p. 7

Legal principles established

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  • A judge will not interfere with a Taxing Officer's discretion unless the Taxing Officer erred in principle in assessing the costs.
  • Where the ruling of the Taxing Master is self-contained and gives reasons, there is no need for the objector to seek fresh reasons before filing a reference.
  • Garnishee proceedings instruction fees are prescribed under Paragraph 14 of Schedule 6A of the ARO and are not to be assessed on the value of the subject matter.

Court orders

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  1. 1.The Taxing Master's decision made on 17th April, 2024 in ELC Appeal No. 32 of 2019 awarding the Respondent costs of KShs.280,391/- and all consequential orders thereto be and is hereby set aside
  2. 2.The Bill of Costs shall be taxed afresh by another Taxing Master other than Hon. Kiptoo, Principal Magistrate
  3. 3.The Applicant shall have the costs of this application
  4. 4.The Notice of Preliminary Objection dated 22nd May, 2024 is dismissed

Authorities

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Legislation

  • Advocates (Remuneration) OrderRule 11(1), (2), (3), (4)
  • Advocates (Remuneration) OrderSchedule 6, Paragraph 3; Schedule 6A Paragraphs 3 and 14

Cases cited (8)

  • Kipkorir, Titoo & Kiara Advocate vs Deposit Protection Fund Board
    NRB CA Civil Appeal No. 220 of 2004 (2005) eKLR
  • Joreth Ltd vs Kigano & Associates
    NRB CA Civil Appeal No. 66 of 1999 (2002) eKLR; (2002) E.A. 92
  • Peter Muchoka & Another vs Ochieng & 3 Others
    (2019) eKLR
  • Ahmednasir Abdikadir & Co. Advocates vs National Bank of Kenya Limited (2)
    (2006) eKLR
  • Evans Thiga Gaturu vs Kenya Commercial Bank Limited
    (2012) eKLR
  • Arthur vs Nyeri Electricity Undertaking
    (1961) EA 497
  • Devshi Dhanji vs Kanji Naran Patel (No. 2)
    (1978) KLR 243
  • D'Souza v Ferrao
    [1960] EA 602
Jurisdiction invoked
Rule 11 of the Advocates (Remuneration) Order - reference to a judge from a Taxing Master's decision; Rule 11(4) power to enlarge time

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kotut v Kipngok & Another (Environment and Land Miscellaneous Application E019 of 2024) [2024] KEELC 6133 (KLR)", Case Analysis (2024). ELC Appeal No. 32 of 2019 (Reference). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6133/eng@2024-09-25

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