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ELCDismissedChamber Summons application dated 30th May, 2024· [2024] KEELC 7231 (KLR)

Ndambuki v Wambua & 2 others (All Sued as the Administrators of the Estate of the Late Beth Nduku Wambua) (Environment and Land Miscellaneous Application E023 of 2024) [2024] KEELC 7231 (KLR)

Environment and Land Court
31 October 2024
2,142 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling on an advocates' client-taxed-costs reference brought by the Applicant, Francis Ndambuki, under Rule 11(2) and Schedule 6 of the Advocates (Remuneration) Order and sections 1A, 1B and 3A of the Civil Procedure Act, seeking to set aside the Taxing Master's decision of 24th May 2024 taxing the Respondents' Party and Party Bill of Costs dated 2nd August 2023, arising from a land judgment delivered on 26th July 2023. The Taxing Master awarded instructions fees of Kshs 300,000/= and getting up fees at one-third thereof, total award Kshs 512,990/=, declining the Kshs 3 million claimed. The Applicant argued the Taxing Master erred in principle by not pegging instructions fees on the pleaded value of the suit land, which he contended was ascertainable from the Plaint as Kshs 3,000/= (the 1975 consideration), warranting a Kshs 75,000/= fee under Schedule 6(1)(b). The Respondents maintained the award was fair given the complexity of the land matter and the prime Machakos Town location of the property. The court, applying Joreth Ltd v Kigano & Associates and the W'Njuguna standard for interference with taxation, held that the pleadings disclosed only the 1975 consideration, not the current value, and no valuation report was furnished; the Taxing Master therefore properly exercised her discretion. The court took judicial notice of inflation and upheld both the instructions fee and the getting up fees, dismissing the application with costs on 31st October 2024.

Key legal issues

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01

Whether the Taxing Master erred in principle in awarding Kshs 300,000/= as instructions fee when the Applicant contended the value of the suit land was ascertainable from the pleadings as Kshs 3,000/=.

Holding

No error in principle. The pleadings disclosed only the 1975 consideration of Kshs 3,000/=, not the current value of the land; no valuation report was furnished. The Taxing Master rightly exercised her discretion, and judicial notice that inflation means the 1975 value cannot equal the 2024 value.

Reasoning

The court noted the Plaint only indicated the Kshs 3,000/= consideration paid in 1975, not the current value of the property, and no valuation report was placed before the court. Under Joreth Ltd v Kigano, where value is not ascertainable from the pleadings, the taxing officer may use discretion, considering the nature and importance of the matter and work done. The court took judicial notice of inflation, upholding the Kshs 300,000/= award.

p. 4
02

Whether the getting up fees awarded at one-third of the instructions fee were lawful.

Holding

Yes; Schedule 6 Paragraph (2)(i) mandates a getting up fee of not less than one-third of the instruction fee, and the court would not interfere.

Reasoning

The court quoted Schedule 6 Paragraph (2)(i) of the Remuneration Order, which provides that where a denial of liability is filed or issues are joined, a getting up fee of not less than one-third of the instruction fee shall be allowed in addition to the instruction fee. The Taxing Master's award of one-third complied with this provision and was left undisturbed.

p. 4

Legal principles established

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  • A court may only interfere with a taxing officer's decision where it is shown to be based on an error of principle or the fee awarded is manifestly excessive as to justify an inference of error of principle
  • The value of the subject matter for taxation is determined from the pleadings, judgment or settlement; if not ascertainable, the taxing officer may use discretion to assess a just instructions fee

Court orders

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  1. 1.The Chamber Summons application dated the 30th May, 2024 is dismissed with costs

Authorities

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Legislation

  • Advocates (Remuneration) OrderRule 11(2); Schedule 6; Schedule 6(1)(b); Schedule 6 Paragraph (2)(i)
  • Civil Procedure Actsections 1A, 1B and 3A
  • Civil Procedure Rulesproportionality in costs (as submitted by Respondents)

Cases cited (11)

  • Peter Muthoka & another v Ochieng & 3 others
    NRB Civil Appeal No 328 of 2017 (2019) eKLR
  • Kamunyori & Company Advocates v Development Bank of Kenya Limited
    (2015) Civil Appeal 206 of 2006
  • Republic v Minister for Agriculture & 2 others Ex parte W’Njuguna & 6 others
    NRB HC Misc. Appl. No 621 of 2000 (2006) eKLR
  • Shah v Mbogo
    (1967) EA 116
  • Ndungu v Serem
    (Civil Appeal 110 of 2019) (2022) KEHC 13599 (KLR)
  • Republic v County Government of Nyeri & another
    (2015) eKLR
  • Kipkorir, Tito & Kiara Advocates v Deposit Protection Fund Board
    (2005) eKLR
  • Joreth Ltd v Kigano & Associates
    (2002) 1EA 92; [2002] eKLR
  • James Wangalwa & another v Agnes Naliaka Cheseto
    (2012) eKLR
  • Kivanga Estates Limited v National Bank of Kenya Limited
    (2017) eKLR
  • Crossley Holdings Ltd v Cabinet Secretary, Ministry of Agriculture, Livestock, Fisheries & Cooperatives & 3 others; Ogendo & another (Interested Party)
    (Constitutional Petition 6 of 2020) (2022) KEELC 2529 (KLR) (15 July 2022) (Ruling)
Jurisdiction invoked
Rule 11(2) and Schedule 6 of the Advocates (Remuneration) Order; sections 1A, 1B and 3A of the Civil Procedure Act

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, "Ndambuki v Wambua & 2 others (All Sued as the Administrators of the Estate of the Late Beth Nduku Wambua) (Environment and Land Miscellaneous Application E023 of 2024) [2024] KEELC 7231 (KLR)", Case Analysis (2024). Chamber Summons application dated 30th May, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7231/eng@2024-10-31

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