Geyser International Assets Limited v Attorney General & 3 others (Constitutional Petition 209 of 2015) [2024] KEELC 7289 (KLR)
The bottom line
#The Environment and Land Court in Mombasa dismissed Geyser International's challenge to Kshs. 5.4 million in legal costs, confirming that written submissions cannot oppose a bill of costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the Taxing Master erred in principle in finding the bills unopposed despite the Petitioner's written submissions
No error; submissions are not a response to a bill of costs and do not amount to evidence
The court applied the settled principle that submissions are merely a convincing tool and cannot substitute for evidence or a formal response such as grounds of opposition or a replying affidavit. Since the Petitioner filed only written submissions and no grounds of opposition or replying affidavit to the bills, the Taxing Master properly treated the bills as unopposed. Failure to consider submissions is not a ground for setting aside a taxation decision.
Whether the Taxing Master erred in adopting the value of the subject matter (Kshs. 106,611,361.50) rather than Schedule 6 paragraph (j) of the Advocates (Remuneration) Order 2014
No error; paragraph 1(j) of Schedule 6 permits consideration of the value of the subject matter in constitutional petitions
Schedule 6 paragraph (j) governing constitutional petitions directs the taxing officer to take into account the amount or value of the subject matter, among other factors. Using the value of the suit property as determined in the final judgment was permissible and no error of principle was disclosed. The minimum instruction fees based on that value were properly awarded given the respondents exited the suit early.
Whether the 2nd and 4th Respondents ought to have filed one joint bill of costs
No; separately instructed parties who filed separate pleadings are entitled to separate bills of costs under Rule 62
Rule 62 of the Advocates (Remuneration) Order contemplates that where an advocate acts for multiple parties who file separate pleadings, separate bills may be taxed, with the taxing officer empowered to disallow costs unnecessarily incurred. Here the two respondents were distinct legal entities, instructed the same firm at different times, and filed separate replying affidavits. Each was therefore entitled to a separate bill and separate costs.
Whether the costs awarded extended only to the application of 14th July 2021 or the entire Petition
The court's ruling of 15th December 2021 awarded the general costs of the proceedings up to the dismissal of the suit against the respondents
Applying section 27 of the Civil Procedure Act and the principle that costs follow the event, the respondents who succeeded in having the claim against them dismissed were awarded all costs incidental to the Petition as well as the application. The 'event' is the result of the entire litigation at that stage, and the respondents were the successful parties at that point.
Legal principles established
#- A court will not interfere with a Taxing Officer's decision unless it is shown to be based on an error of principle or the fee awarded was manifestly excessive or low as to justify an inference of error of principle
- Submissions cannot be taken as a response to a bill of costs and do not amount to evidence
- Where the same advocate acts for separate parties who file separate pleadings, each party is entitled to a separate fee and separate bills of costs
Court orders
#- 1.That the Chamber Summons application dated 17th May 2024 by the Petitioner/Applicant do and is hereby found to be devoid of merit and is hereby dismissed.
- 2.That costs of the application be awarded to the 2nd and 4th Respondents to be borne by the Petitioner/Applicant herein.
- Jurisdiction invoked
- Sections 1A, 1B, 3A of the Civil Procedure Act, Cap. 21; Paragraph 11 of the Advocates Remuneration Order; Article 159 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Geyser International Assets Limited v Attorney General & 3 others (Constitutional Petition 209 of 2015) [2024] KEELC 7289 (KLR)", Case Analysis (2024). Chamber Summons application dated 17th May 2024 (arising from a Constitution Petition dated 10th September 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7289/eng@2024-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.