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High CourtPartially AllowedChamber Summons dated 25th March 2019

In the Matter of Taxation of the Party and Party Bill of Costs dated 27th February 2018 (Chamber Summons dated 25th March 2019)

High Court of Kenya
27 January 2020
2,236 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Getting up fees are payable even if no witnesses are involved, and the court can correct errors in how legal fees are calculated.

What this practically means

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Executive summary

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The Applicant, the Subject in a Judicial Review matter, applied by Chamber Summons dated 25th March 2019 for the setting aside of the Deputy Registrar's ruling of 12th February 2019 taxing his party and party bill of costs dated 27th February 2018, and for re-taxation of instruction fees, attendance fees and getting up fees. The Applicant argued that the Taxing Master wrongly applied Schedule 6j(i) instead of Schedule 6j(ii), taxed off item 4 as a repetition of item 9, denied instruction fees for the substantive motion (item 13) and getting up fees (item 14), and applied the Lower Scale to numerous attendance items despite the matter being opposed. The Respondent opposed, contending the taxation was properly done, that taxation is not a mathematical exercise, and that leave and substantive motion instruction fees cannot be separated. The court found no misdirection on item 1: the matter was opposed but not adjudged complex, so Schedule 6j(i) applied and the enhancement to Kshs 100,000 was a proper exercise of discretion. Item 13 was properly taxed off as instructions fees for Judicial Review applications cover both the leave application and the substantive motion. However, the court agreed with the Applicant on item 14, holding that getting up fees are payable even without witness preparation, and assessed them at Kshs 33,333. Item 4 was held distinct from item 9 and its fee restored. The Lower Scale was wrongly applied to the attendance items. The court partially allowed the reference, ordered each party to bear its own costs, and remanded the matter to the Taxing Master for a fresh assessment in accordance with the ruling.

Key legal issues

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01

Choice of Schedule 6j(i) versus 6j(ii) for instruction fees

Holding

Schedule 6j(i) was correctly applied because the matter, though opposed, was not adjudged complex; the Taxing Master's enhancement to Kshs 100,000 was a proper exercise of discretion

Reasoning

Schedule 6j(i) applies where the matter is not complex or opposed, with a floor of Kshs 45,000 capable of enhancement. Schedule 6j(ii) requires both that the matter is opposed and adjudged complex. Since no judge had certified the matter complex, the Taxing Master's use of 6j(i) and her enhancement to Kshs 100,000 involved no misdirection.

p. 3
02

Taxation of getting up fees in a Judicial Review application (item 14)

Holding

The Taxing Master erred in taxing off the entire getting up fee; such fees are payable even without witness preparation, and were assessed at one third of the instruction fee

Reasoning

The Taxing Master reasoned that a Judicial Review application required no trial preparation involving witnesses. The court held this was wrong: the Remuneration Order contemplates getting up fees for matters such as appeals which involve no witnesses. Getting up fees were therefore fixed at one third of the Kshs 100,000 instruction fee, i.e. Kshs 33,333.

p. 3
03

Whether item 4 duplicated item 9

Holding

Item 4 was distinct from item 9 and the fee was restored

Reasoning

Item 4 related to drawing an application for leave to be heard during the High Court vacation, while item 9 covered attendance before the Deputy Registrar in Nakuru to have the file conveyed to Nairobi for a Judge's directions. The two attendances were distinct, so the fee on item 4 was restored.

p. 3
04

Attendance fees taxed under the Lower Scale (items 118-151)

Holding

The Taxing Master misdirected herself; the Higher Scale applies because the matter was opposed

Reasoning

The Taxing Master applied the Lower Scale on the basis that each attendance took less than half an hour. The court held that the Lower Scale is reserved for unopposed suits; since the Judicial Review application was opposed, the Higher Scale should have applied to those items.

p. 3

Legal principles established

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  • The Lower Scale of attendance fees applies only where the suit is not opposed; the Higher Scale applies to opposed matters
  • Getting up fees are payable even in proceedings that do not involve preparation of witnesses, including Judicial Review applications
  • Instructions fees for Judicial Review applications cover both the application for leave and the substantive motion, which cannot be separately taxed

Court orders

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  1. 1.Each party to bear the costs of the Application
  2. 2.The matter remanded to the Taxing Master to prepare a new assessment of fees in accordance with the ruling
  3. 3.The fee charged on item 4 restored
  4. 4.Getting up fees assessed at Kshs 33,333/- (one third of the Kshs 100,000 instruction fee)
Jurisdiction invoked
Reference against the decision of the Deputy Registrar as taxing master under the Advocates Remuneration Order 2014

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, "In the Matter of Taxation of the Party and Party Bill of Costs dated 27th February 2018 (Chamber Summons dated 25th March 2019)", Case Analysis (2020). Chamber Summons dated 25th March 2019. Source: 

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