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ELCPartially AllowedFormerly High Court Civil Suit No. 100 of 2011 (transferred to this court in 2015; current number not stated in the judgment)· [2024] KEELC 6979 (KLR)

Mayfair Holdings Limited v Omumbo & another (Environment and Land Case Civil Suit 874 of 2015) [2024] KEELC 6979 (KLR)

Environment and Land Court of Kenya
24 October 2024
3,390 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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Following a judgment delivered on 12th October 2023 in favour of the Plaintiff against the Defendants in a land trespass suit over Kisumu Municipality/Block 8/297, the Plaintiff filed a party and party bill of costs dated 22nd February 2024 drawn at Kshs. 834,001/- with 65 items. The taxing officer, Hon. M. Shimenga, taxed it on 28th March 2024 at Kshs. 318,886/-, including instruction fees at Kshs. 180,000/- and getting up fees at Kshs. 60,000/-. The Defendants filed an application seeking leave to file a reference out of time, a stay of proceedings, setting aside of the taxation and taxation afresh. They contended the bill as taxed was manifestly high relative to the Kshs. 100,000/- damages awarded, that the instruction fees were 'plucked from the air', and that reasons for the taxation were only supplied on 11th April 2024, after the reference period lapsed. The Plaintiff opposed, defending the reasonableness of Kshs. 180,000/- as instruction fees. The court declined to consider the stay limb, noting the Court of Appeal had dismissed the Defendants' stay application on 19th July 2024. On the reference, the court held the taxing officer erred in principle by failing to first ascertain the value of the subject matter from the pleadings or judgment before assessing instruction fees, without explaining how Kshs. 180,000/- was reached, and by failing to record in her ruling how items 3, 4, 5 and 6 to 27 were taxed, her file notes not forming part of the ruling. Applying Kipkorir, Tito & Kiara and Joreth Limited, the court set aside the taxation ruling of 28th March 2024 and remitted the bill to any other taxing officer for taxation afresh, with each party bearing its own costs of the application dated 1st April 2024.

Key legal issues

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01

Whether the taxing officer committed an error of principle in assessing instruction fees at Kshs. 180,000/-

Holding

Yes - the taxing officer failed to first ascertain the value of the subject matter of the suit from the pleadings or judgment, and gave no explanation for the figure of Kshs. 180,000/-, amounting to an error of principle

Reasoning

Instruction fees are based on the value of the subject matter, which must be ascertained from the pleadings, judgment or settlement per Joreth Limited v Kigano & Associates. The taxing officer stated only that the fee was 'reasonably taxed' at Kshs. 180,000/- without explaining how she arrived at that figure, leading the court to infer an error of principle warranting interference.

02

Whether the failure to record in the ruling how items 3, 4, 5 and 6 to 27 were taxed was an error of principle

Holding

Yes - the court's file notes are not part of the ruling, and without the ruling showing how those items were taxed, the parties had no way of knowing the basis of the taxation

Reasoning

The taxing officer taxed items 3 and 4 as drawn, item 5 at Kshs. 3,000/- and items 6 to 27 as drawn, but only per her file notes, which are not part of the ruling. The court held that parties are entitled to know from the ruling itself how each item was taxed, and the omission amounted to an error of principle.

03

Whether a blanket challenge to the entire taxation is a proper mode of challenge

Holding

No - the objecting party should identify the specific items objected to and the reasons, but the court nonetheless found errors of principle from its own perusal of the file

Reasoning

The court observed that the Defendants' general objection to the whole decision was not the best way to challenge a taxation; they should have pinpointed the items objected to and the reasons. Nevertheless, on its own review of the ruling and file, the court identified errors of principle in the assessment of instruction fees and the unexplained items.

p. 5
04

Whether the court should tax the bill afresh itself or remit it

Holding

The court remitted the bill to any other taxing officer for taxation afresh, applying the general practice where an error of principle is found

Reasoning

Citing Kipkorir, Tito & Kiara Advocates v Deposit Protection Fund Board, the court noted the general practice is to remit quantum to the taxing officer where an error of principle is found, the judge retaining a discretion to tax himself. Since the whole bill's taxation was contested, the taxing officer was better placed to retax it.

p. 6

Legal principles established

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  • A judge on reference will not interfere with a taxing officer's discretion unless the taxing officer erred in principle
  • Failure to ascertain the value of the subject matter from the pleadings or judgment before assessing instruction fees is an error of principle
  • Failure of the taxing officer to explain in the ruling how particular items were taxed is an error of principle

Court orders

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  1. 1.The ruling and orders made by the taxing officer, Hon. M. Shimenga on March 28, 2024 on the Plaintiff's bill of costs dated February 22, 2024 are set aside
  2. 2.The bill of costs is remitted back to any other taxing officer for taxation afresh
  3. 3.Each party shall bear its costs of the application dated April 1, 2024

Authorities

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Legislation

  • Advocates Remuneration Order (ARO)2006, 2009 and 2014 editions; Schedule 6(a)(i)(j); Schedule VIA1 (as referenced in Joreth)

Cases cited (5)

  • Kipkorir, Tito & Kiara Advocates v. Deposit Protection Fund Board
    [2005] eKLR
  • Kamunyori & Company Advocates v. Development Bank of Kenya Limited
    Civil Appeal No. 206 of 2006 [2015] eKLR
  • Joreth Limited v Kigano & Associates
    [2002] EA 92
  • Eastland Hotel Limited v. Wafula Simiyu & Co. Advocates
    [2014] eKLR
  • D'Sonza v Ferrao
    [1960] EA 602
Jurisdiction invoked
Reference against the decision of the taxing officer under the Advocates Remuneration Order (ARO); the suit was transferred from the High Court to this court in 2015

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, "Mayfair Holdings Limited v Omumbo & another (Environment and Land Case Civil Suit 874 of 2015) [2024] KEELC 6979 (KLR)", Case Analysis (2024). Formerly High Court Civil Suit No. 100 of 2011 (transferred to this court in 2015; current number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6979/eng@2024-10-24

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