Mayfair Holdings Limited v Omumbo & another (Environment and Land Case Civil Suit 874 of 2015) [2024] KEELC 6979 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the taxing officer committed an error of principle in assessing instruction fees at Kshs. 180,000/-
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
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.
Whether the failure to record in the ruling how items 3, 4, 5 and 6 to 27 were taxed was an error of principle
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
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.
Whether a blanket challenge to the entire taxation is a proper mode of challenge
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
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.
Whether the court should tax the bill afresh itself or remit it
The court remitted the bill to any other taxing officer for taxation afresh, applying the general practice where an error of principle is found
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.
Legal principles established
#- 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
#- 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.The bill of costs is remitted back to any other taxing officer for taxation afresh
- 3.Each party shall bear its costs of the application dated April 1, 2024
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.