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ELCDismissedMiscellaneous Application (Chamber Summons) dated 18th April 2024· [2024] KEELC 6819 (KLR)

Sichangi & 3 others v Wangusi (Miscellaneous Application E005 of 2024) [2024] KEELC 6819 (KLR)

Environment and Land Court
17 October 2024
2,092 words in judgment
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The bottom line

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A Bungoma court refused to overturn a Taxing Master's fees award, confirming Kenyan judges only intervene where taxation involved a clear error of principle.

What this practically means

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Executive summary

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The Applicant, Christopher Sichangi, brought a Chamber Summons under Order 11(2) of the Advocates Remuneration Order seeking to set aside a Taxing Master's ruling of 20th March 2024 relating to item 1 (instruction fees and getting up fees) of the 1st Defendant's bill of costs dated 6th October 2023, contending the taxed fees of Kshs.250,000/= instruction fees and Kshs.83,333/= getting up fees were excessive given a subject land value of Kshs.200,000/=. He sought re-taxation or taxation by another Taxing Master. The Respondent opposed, arguing the reference was filed out of time (33 days against the 14-day limit in paragraph 11), that fresh evidence could not be introduced at reference stage after the Applicant failed to participate in taxation, and that the Taxing Master properly exercised her discretion. The court framed three issues: timeliness, merit, and costs. On timeliness, the court noted the directions were posted on the Court Tracking System on 12/4 and, in the interest of justice, proceeded to consider the application on the merits. On merit, the court applied the principles in First American Bank of Kenya v Shah, Joreth Ltd v Kigano & Associates, Kipkorir Titoo & Kiara Advocates and Republic v Minister for Agriculture ex parte W'njuguna, holding that interference requires an error of principle or capricious exercise of discretion. It found the value of the subject matter could not be ascertained from the record: the sale agreement concerned parcel Bokoli/Chwele/259 while the amended plaint concerned parcel Bokoli/Chwele/3320 with no stated value, and the judgment merely took note of the evidence. Finding no capricious or whimsical exercise of discretion, the court dismissed the application with costs on 17th October 2024 (E.C. Cherono, ELC Judge, Bungoma).

Key legal issues

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01

Whether the reference was time barred

Holding

The court excused the delay in the interest of justice, noting the directions were posted on the Court Tracking System on 12/4/2024 and the applicant was expected to be proactive

Reasoning

The Taxing Master issued directions on 26/3/2024 but they were posted on the Court Tracking System Platform on 12/4/2024, when the applicant claimed to have seen them. Although the applicant should have followed up proactively, the court chose to consider the application on its merits in the interest of justice rather than dismiss it as time barred.

p. 4
02

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

Holding

No error of principle established; the value of the subject matter could not be ascertained from the record and the amended plaint referred to a different parcel with no stated value

Reasoning

The applicant filed the reference as a miscellaneous application separate from the primary suit, so the court could not consider the entire record. The sale agreement showed Kshs.200,000/= for parcel Bokoli/Chwele/259, but the amended plaint concerned parcel Bokoli/Chwele/3320 with no value stated, and the judgment merely took note of the evidence. There was thus no capricious or whimsical exercise of discretion.

p. 4

Legal principles established

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  • A Taxing Master's judicial discretion can only be interfered with on account of an error of principle, where the fee awarded is manifestly excessive based on an error of principle, or where the discretion is exercised capriciously and in abuse of the correct principles of law.
  • On a reference from taxation, a judge will not normally interfere with the Taxing Officer's discretion unless the Taxing Officer erred in principle in assessing the costs.
  • Instruction fees are principally based on the value of the subject matter, ascertained from the pleadings, judgment or any settlement depending on the stage of taxation.

Court orders

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  1. 1.The application dated 18th April 2024 is dismissed with costs.
  2. 2.Orders accordingly.
Jurisdiction invoked
Order 11(2) of the Advocates Remuneration Order (reference against a Taxing Master's ruling)

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, "Sichangi & 3 others v Wangusi (Miscellaneous Application E005 of 2024) [2024] KEELC 6819 (KLR)", Case Analysis (2024). Miscellaneous Application (Chamber Summons) dated 18th April 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6819/eng@2024-10-17

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