Dacha (Suing as the Administratrix of the Estate of James Romanus Dacha - Deceased) v Opiyo & 3 others (Miscellaneous Civil Application 7 of 2024) [2024] KEELC 6875 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Applicable Schedule of the Advocates Remuneration Order
The taxing officer rightly applied Schedule 7; a party and party bill cannot be taxed under two schedules and a suit transferred to the lower court is a lower court suit as between the parties
The court held that the Applicant's suit was filed in the ELC improperly given the value of the subject matter and reliefs sought, and once transferred to the lower court it was for all intents and purposes a lower court suit. Costs awarded by that court could only be taxed under Schedule 7, and even if heard by the ELC, Schedule 7 would still apply under paragraph 58 of the ARO. The taxing officer could not tax a party and party bill under both schedules.
Assessment of instruction fees
As the value of the subject matter was not ascertainable from the pleadings or judgment, the taxing officer properly used his discretion to assess instruction fees at Kshs. 150,000/-
Applying Joreth Limited v Kigano & Associates, the court found the value of the subject matter could not be ascertained from the pleadings or judgment. The taxing officer was therefore entitled to exercise discretion considering the nature and importance of the matter, the interest of the parties, the conduct of proceedings and any court directions. The award of Kshs. 150,000/- was not manifestly low so as to amount to an error of principle.
Disallowance of travelling expenses (items 166 and 167)
The disallowance was proper; the Applicant failed to prove the disbursements despite bearing the burden of proof
The court held that paragraphs 16 and 74 of the ARO do not absolve a claimant of disbursements in the nature of travelling expenses from proving the expenditure. The disallowance itself signified the taxing officer required proof through receipts and vouchers, which were not provided when the bill of costs was filed. No error of principle was established.
Legal principles established
#- A judge on reference will not interfere with the taxing officer's discretion unless the taxing officer erred in principle
- The value of the subject matter for taxation purposes is determined from the pleadings, judgment or settlement; if not ascertainable, the taxing officer may exercise discretion to assess a just instruction fee
- Where a suit should have been filed in the subordinate court and was transferred there, party and party costs are taxable under Schedule 7 of the ARO notwithstanding prior filing in the ELC
- A party claiming disbursements such as travelling expenses bears the burden of proving them, and paragraphs 16 and 74 of the ARO do not absolve that duty
Court orders
#- 1.The Chamber Summons application dated 1st February 2024 is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Reference from taxation by the taxing officer under the Advocates Remuneration Order
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Dacha (Suing as the Administratrix of the Estate of James Romanus Dacha - Deceased) v Opiyo & 3 others (Miscellaneous Civil Application 7 of 2024) [2024] KEELC 6875 (KLR)", Case Analysis (2024). Chamber Summons application dated 1st February 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6875/eng@2024-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.