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MagistratePartially Allowed· [2022] KEMC 44 (KLR)

Republic v Land Registrar Kwale & another; Tolksdorf (Exparte Applicant) (Environment & Land Miscellaneous Case 4 of 2021) [2022] KEMC 44 (KLR)

Environment and Land Court, Kwale - Deputy Registrar (Taxation)
14 December 2022
1,673 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court slashed a legal costs bill from Ksh. 1.6 million to about Ksh. 278,000, ruling costs must reflect pleaded case value, not speculation.

What this practically means

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Executive summary

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This is a taxation ruling by the Deputy Registrar of the Environment and Land Court at Kwale on a Party and Party Bill of Costs filed on 3rd June 2022 by the Interested Party (Applicant). The bill arose from a ruling by Lady Justice A.E. Dena delivered on 7th March 2022 dismissing a Notice of Motion dated 13th June 2013 with costs to the Interested Party. The applicable remuneration orders were held to be the Advocates Remuneration Orders 2009 and 2014, Schedule VI. Twelve items were taxed as drawn by consent. The central dispute was the instruction fees, drawn at Ksh. 900,000 on a speculative land value of Ksh. 15,000,000. The taxing master held that value must be derived from the pleadings, judgment or settlement; the Applicant's own replying affidavit of 29th August 2013 valued the land at Ksh. 5,000,000, corroborated by stamp duty of Ksh. 100,000 at 2%. Instruction fees were taxed at Ksh. 152,000 under Schedule VI(b) of ARO 2009, with Ksh. 748,000 taxed off. On the 1.5% additional fee, the court held it applies to the entire subject matter value, rejecting a prorated calculation. Documents prepared for the client's due diligence were taxed off as not incidental to the suit, as were attendances without proof, hearing and ruling notices not on file, and unproven disbursements including travelling and surveyor costs. VAT was not awarded on the party and party bill. The bill was taxed at Ksh. 277,960, with Ksh. 1,351,376 taxed off.

Key legal issues

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01

Basis of instruction fees

Holding

Instruction fees taxed at Ksh. 152,000 based on the pleaded value of Ksh. 5,000,000, corroborated by stamp duty assessment

Reasoning

The court held that value must come from pleadings, judgment or settlement. The Applicant's own replying affidavit valued the land at Ksh. 5,000,000, and the stamp duty of Ksh. 100,000 at 2% corroborated a value of Ksh. 5,000,000. Speculation about future appreciation was rejected as instructions were given in 2013 based on then-value.

p. 2
02

Interpretation of Schedule VI Paragraph 1(b) ARO 2014

Holding

The 1.5% is levied on the entire value of the subject matter, not only the excess over the threshold

Reasoning

The Respondent proposed a prorated/clustered PAYE-style calculation, but the taxing master found that words like 'extra' or 'excess' are absent from the provision, and the natural meaning is that the 1.5% applies to the entire value. The equivalent 1989 Order clauses expressly used 'on the amount over Sh. 750,000', showing the difference.

p. 2
03

Documents not incidental to the suit

Holding

Documents drafted for the client's own due diligence, not incidental to the suit, are not taxable

Reasoning

Items 9, 10 and 11 related to the case but were drafted for the sole consumption of the Applicant at the evidence and due diligence stage; lacking a direct nexus as costs incidental to the suit, they were taxed off.

p. 3
04

Unproven disbursements

Holding

Disbursements such as travelling and surveyor costs require proof by receipts; unproven items are taxed off

Reasoning

The taxing master required proof of disbursements. Travelling costs lacked specification of the traveller and receipts; the surveyor's costs lacked any bill or payment receipt despite the court's direction that parties bear them; all were taxed off for want of proof.

p. 3

Legal principles established

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  • The value of the subject matter for taxing instruction fees is to be determined from the pleadings, judgment or settlement between the parties.
  • Instruction fees are taxed based on the value of the subject matter at the time instructions were given, not present appreciated value.

Court orders

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  1. 1.Items 2, 3, 4, 5, 6, 7, 8, 14, 15, 16, 17, 18 and 24 taxed as drawn
  2. 2.Instruction fees taxed at Ksh. 152,000 based on value of Ksh. 5,000,000; Ksh. 748,000 taxed off
  3. 3.Items 9, 10 and 11 taxed off
  4. 4.Item 12 taxed at Ksh. 3,000; Ksh. 12,000 taxed off
  5. 5.Item 13 taxed at Ksh. 100; Ksh. 900 taxed off
  6. 6.Item 19 taxed off
  7. 7.Drawing Notice of Ruling taxed at Ksh. 360; Ksh. 2,140 taxed off
  8. 8.Item 22 taxed off
  9. 9.Item 23 taxed off
  10. 10.Item 25 taxed off pending proof by receipts
  11. 11.VAT not awarded on the party and party bill of costs
  12. 12.Bill of Costs filed 3rd June 2022 taxed at Ksh. 277,960; Ksh. 1,351,376 taxed off
Jurisdiction invoked
Advocates Remuneration Orders 2009 and 2014, Schedule VI (taxation of party and party costs)

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, "Republic v Land Registrar Kwale & another; Tolksdorf (Exparte Applicant) (Environment & Land Miscellaneous Case 4 of 2021) [2022] KEMC 44 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2022/44/eng@2022-12-14

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