Kiattu & another v Muhika & 2 others (Environment & Land Case 410 of 2019) [2024] KEELC 6616 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether an exhibit/sale agreement can be used to determine the value of the subject matter for instruction fees
No. The taxing officer conflated an exhibit (a sale agreement) with a pleading; value must be discerned from the pleadings, judgment or settlement, and here the plaint disclosed Kes.35,000,000.
Section 2 of the Civil Procedure Act defines pleadings as petitions, summonses, plaints, defences and replies; an affidavit or exhibit is evidence, not a pleading. The taxing officer resorted to a 2007 sale agreement filed as an exhibit, which did not reflect the value at filing of suit in 2019, and ignored the pleaded alternative claim of Kes.35,000,000. This was a misapprehension of the pleadings and an error of principle.
Whether instruction fees are chargeable once despite both a suit and a counterclaim
No. A counterclaim is a separate cross-suit; separate instruction fees (and getting up fees) are chargeable for the defence of the suit and for the counterclaim.
The taxing officer held instruction fees were chargeable only once. The court held the plaint and the counterclaim constitute two separate suits; the advocate took instructions on two accounts and could charge instruction fees twice. Relying on authority that a counterclaim breathes its own life independent of the suit, the failure to assess fees on the counterclaim was a further error of principle, and the resultant getting up fees award was also erroneous.
Circumstances in which a court interferes with a certificate of taxation
A court defers to the taxing officer's discretion but will interfere where an error of principle is shown, including reliance on extraneous factors or disregard of relevant material.
Taxation falls within the taxing officer's technical competence and courts exercise restraint. However, where the taxing officer takes into account irrelevant factors, fails to consider relevant material, or misapplies the Advocates Remuneration Order formula, that constitutes an error of principle justifying interference. Here the taxing officer relied on the sale agreement consideration, disregarded the pleadings, and effectively varied the court's judgment awarding costs on both suit and counterclaim.
Legal principles established
#- The value of the subject matter for taxation of instruction fees must be determined from the pleadings, judgment or settlement, not from exhibits or documents of evidence.
- A counterclaim is a separate cross-suit; an advocate is entitled to separate instruction fees for defending the suit and for prosecuting the counterclaim.
- A court on a reference will interfere with a taxing officer's decision only where an error of principle is demonstrated.
Court orders
#- 1.The Reference (Notice of Motion Application) dated 8 April 2024 allowed.
- 2.The Ruling of the Taxing Officer rendered on 27 March 2024 and the consequential certificate of taxation set aside.
- 3.The Applicants' Bill of Costs dated 23 October 2023 remitted for taxation before a taxing officer other than Hon. Tessy Marienga (DR).
- 4.The taxing officer to tax or retax the specific items relating to instruction fees on the suit, counterclaim and the attendant fees for getting up in line with the directions in the ruling.
- 5.Costs of the Reference awarded to the Applicants, assessed and certified at Kes.25,000.
- Jurisdiction invoked
- Reference from the decision of the Taxing Master under the Advocates Remuneration Order (court's taxation reference jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiattu & another v Muhika & 2 others (Environment & Land Case 410 of 2019) [2024] KEELC 6616 (KLR)", Case Analysis (2024). Not stated in judgment (Reference dated 8 April 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6616/eng@2024-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.