Kawa Paradise Limited v Kenia Rafikis Limited (Environment and Land Miscellaneous Application E001 of 2022) [2022] KEMC 28 (KLR)
The bottom line
#A Kenyan court taxed a costs bill down from Ksh. 270,575 to Ksh. 125,172, cutting instruction fees to 75% because the case ended without a full trial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicable Remuneration Order is the Advocates (Remuneration) (Amendment) Order, 2014, Schedule 6
- 2.How instruction fees should be assessed where the underlying suit was determined in a summary manner without full trial
- 3.Whether the value of the subject matter could be discerned so as to guide assessment
- 4.Whether the individual items in the Party and Party Bill of Costs were supported by evidence
Key legal issues
#Applicable Remuneration Order and Schedule
The Advocates (Remuneration) (Amendment) Order, 2014 (Legal Notice No. 35), Schedule 6 applied as the matter was filed and determined in 2022
The court held that because the matter was both filed and determined within 2022, the 2014 Amendment Order governed, specifically Schedule 6 governing costs of proceedings in the High Court and courts of equal status. The Bill arose from a ruling of the Environment and Land Court, a court of equal status to the High Court.
Assessment of instruction fees where suit determined summarily
Instruction fees taxed at 75% of Ksh. 120,000/=, i.e. Ksh. 90,000/=, as the suit terminated without full trial following a preliminary objection and withdrawal
The court found the suit was determined in a summary manner based on a preliminary objection plus an application to withdraw, so paragraph 1(b) of Schedule 6 Part A applied. Although the value of the subject matter could not be discerned, the court considered the nature of the suit, the parties' high interest, and the fact that it concerned land, and held Ksh. 120,000/= not unreasonable before applying the 75% discount.
Proof of service and perusal items
Items claimed for service, perusal and travelling were taxed off where unsupported by evidence or where affidavits of service were inconsistent
The taxing officer scrutinised each item against proof. Items on service by email were partially allowed; items with no receipts or with two conflicting affidavits of service for different process servers were disallowed as potentially ingenuine; hanging items incapable of ascertainment were also taxed off.
Legal principles established
#- Where a suit is determined in a summary manner without full trial, instruction fees chargeable are 75% of the fees under item 1(b) of Schedule 6
- Where the value of the subject matter cannot be discerned from the pleadings, the assessment is left to the discretion of the taxing officer
Court orders
#- 1.Item 1 of the Bill of Costs (instruction fees) taxed at Ksh. 90,000/=, being 75% of Ksh. 120,000/=, and Ksh. 30,000/= taxed off
- 2.Items 2, 4, 5, 17, 18, 19, 21, 26 and 29 taxed off for lack of proof or being unascertainable hanging items
- 3.Remaining items variously taxed at reduced or drawn amounts
- 4.The Bill of Costs dated 19th September 2022 taxed at Ksh. 125,172/= with Ksh. 145,403/= taxed off
- 5.Each party to bear its own costs of this Bill
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Advocates (Remuneration) (Amendment) Order, 2014 (Legal Notice No. 35), Schedule 6, taxing officer's discretion under the Advocates Act
Relief refused
#Full instruction fees of Ksh. 120,000/=
The matter was resolved summarily, attracting only 75% of the fees under Schedule 6 Part A paragraph 1(b)
Various items claimed without proof (e.g. Items 2, 4, 5, 17, 26)
Lack of proof of service, perusal or travelling; inconsistent affidavits of service
Costs
Each party shall bear its own costs of this Bill
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the end, the Bill of Cost dated 19th September 2022 and filed in court on 20th September 2022 is taxed at Ksh.125, 172 /=. A total of Ksh. 145, 403/= is taxed ofi.
The Bill of Cost was drawn at Ksh. 270, 575/= of which more than a each party shall bear its own cost of this Bill.
in such circumstances where the suit is determined in a summary manner whatsoever without going to full trial, the instruction fees chargeable shall be 75% of the fees chargeable under item 1(b)
The value of the subject matter cannot be discerned from the pleadings, ruling or any settlement by the parties.
Issues in the judgment
#Typographical/formatting corruption in the closing paragraph merging the taxed-off statement with the costs order
Recurring misspelling of 'taxed off' as 'taxed ofi' and 'taxing officer' as 'taxing oficer' throughout the ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kawa Paradise Limited v Kenia Rafikis Limited (Environment and Land Miscellaneous Application E001 of 2022) [2022] KEMC 28 (KLR)", Case Analysis (2022). Miscellaneous Application filed 14th January 2022 (Party and Party Bill of Costs dated 19th September 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2022/28/eng@2022-12-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.