Katoni & another v Kisele (Environment and Land Miscellaneous Application E005 of 2020) [2024] KEELC 6775 (KLR)
The bottom line
#A Kenyan court threw out a Kshs 500,000 legal fee award, confirming that fees must be based on the actual value of the property in dispute.
What this practically means
#Executive summary
#Key legal issues
#Compliance with paragraph 11(1) and (2) of the Advocates Remuneration Order
The application was properly before the court as notice was given to the taxing officer within 14 days; paragraph 11(1) is not mandatory in terms.
Paragraph 11(1) requires an objector to give notice in writing of the items objected to within 14 days of the decision. The Applicants gave notice within the required period. The court held the provision is not mandatory, and that filing a reference without reasons having been supplied was not fatal.
Assessment of instruction fees and getting up fees where the value of the subject matter is ascertainable from the pleadings
The taxing officer erred by failing to assess fees on the ascertainable value of the suit land and by not indicating which Remuneration Order she applied; her award of Kshs 500,000 was set aside.
Applying Joreth Ltd v Kigano & Associates and Peter Muthoka v Ochieng, the value of the subject matter is determined from the pleadings, judgment or settlement. The pleadings disclosed purchase prices of Kshs 40,000 and Kshs 33,800 for portions of the suit land, so the value was ascertainable. The taxing officer instead noted the value was not ascertained, and her ruling did not disclose the applicable schedule, constituting an error justifying interference.
Principles governing interference with a taxing officer's decision
The court interferes only where the taxing officer's award is so high or so low as to amount to an injustice, or where discretion is exercised on wrong principles.
The court adopted the principles in Premchand Raichand Ltd v Quarry Services of East Africa Ltd, including that the taxing officer must exercise discretion judiciously and not whimsically, and that the court will interfere where the award is so high or so low as to cause injustice. Finding the award manifestly excessive relative to the subject matter's value, the court interfered.
Legal principles established
#- Where the value of the subject matter is ascertainable from the pleadings, instruction fees must be assessed on that value; getting up fees flow directly from the instruction fee and shall not be less than one third of it.
- Paragraph 11(1) of the Advocates Remuneration Order is not couched in mandatory terms regarding the notice of objection.
Court orders
#- 1.The application is allowed.
- 2.The decision of the Taxing Master dated 2nd December 2020 is set aside.
- 3.The bill of costs dated August 12, 2020 shall be taxed afresh on items No. 1 and 62 only by the Deputy Registrar ELC, Makueni.
- 4.Each party to bear its own costs.
- Jurisdiction invoked
- Rule 11(1) and (2) of the Advocates Remuneration Order, 1962 (as amended); Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Katoni & another v Kisele (Environment and Land Miscellaneous Application E005 of 2020) [2024] KEELC 6775 (KLR)", Case Analysis (2024). Makueni ELC No. 451 of 2017 (Reference). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6775/eng@2024-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.