Schiering v Said & 3 others (Environment & Land Miscellaneous Case E299 of 2021) [2023] KEMC 272 (KLR)
The bottom line
#A Kwale court cut a Ksh. 2 million legal costs bill to about Ksh. 331,000, rewarding only documented work and rejecting inflated fees and VAT.
What this practically means
#Executive summary
#Key legal issues
#Assessment of instruction fees absent an ascertainable subject matter value
Instruction fee taxed down from Ksh. 1,200,000/= to Ksh. 240,000/= (Item 1(a)), applying the Joreth Limited guidance on the taxing officer's discretion
The value of the subject matter could not be discerned from the pleadings, any judgment (the matter being unconcluded) or any settlement. The court considered the nature of the suit, the parties' interests, and the fact that the only prayer against the Applicant was a mandatory order to reconnect electricity supply, and held it would not be in the interest of justice for private citizens' failed civic claims to attract Ksh. 1,200,000/= without basis.
Entitlement to getting up fees where the suit was concluded before trial
Getting up fees allowed at Ksh. 80,000/=; the court treated the Schedule 6 paragraph 2 conditions as disjunctive and held the advocate's work on the defence and submissions was work beyond the instruction fee
The taxing officer distinguished instruction fees (fees for taking up and advising on the case) from getting up fees (fees to face the adversary), found the Applicant had filed a Defence and Statement of Grounds of Opposition, and that the advocate's skills were employed outside the paid instruction fees when the matter was concluded by preliminary objection.
Proof of itemised costs
The bulk of the itemised items were taxed off for want of supporting proof
Items 3 to 171 (as enumerated) were disallowed because there was no proof of service, drafting, receiving or receipts furnished to the Taxing Officer to establish the items were dealt with as drawn in the Bill of Costs.
Legal principles established
#- The value of the subject matter for purposes of taxing instruction fees is determined from the pleadings, judgment or settlement; where not ascertainable, the taxing officer may use discretion considering the nature and importance of the cause, the interests of the parties, the conduct of proceedings and other relevant circumstances
- Instruction fees represent the professional fees for taking up a client's case and advising; getting up fees are the fees paid to face the adversary and prepare the case for trial
- VAT is not awardable on a party-to-party bill of costs
Court orders
#- 1.Item 1(a) instruction fee taxed at Ksh. 240,000/= with Ksh. 960,000/= taxed off
- 2.Getting up fees allowed at Ksh. 80,000/= being a tax off of Ksh. 340,000/=
- 3.Items 3-6, 7-15, 17, 18, 20-62, 68-91, 93, 94, 96-105, 107-109, 111-155, 160-171 taxed off for want of proof of service, drafting, receiving or receipts
- 4.Item 16 taxed as drawn at Ksh. 1,100/=; Item 19 taxed at Ksh. 360/=; Items 30, 64, 81, 92, 95, 106 taxed as drawn (Item 110 taxed at Ksh. 5,530/=)
- 5.VAT of Ksh. 279,620/= (Item 173) taxed off as this is a party-to-party bill
- 6.Bill of Costs dated 24th May 2019 taxed at Ksh. 330,920/= with Ksh. 1,696,325/= taxed off
- 7.Applicant to bear its own costs of the Bill
- Jurisdiction invoked
- Taxation of a party and party Bill of Costs under the Advocates (Remuneration) (Amendment) Order, 2014 (Legal Notice No. 35), Schedule 6
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Schiering v Said & 3 others (Environment & Land Miscellaneous Case E299 of 2021) [2023] KEMC 272 (KLR)", Case Analysis (2023). not stated in the ruling (ELC suit at Mombasa, Plaint filed 7th December 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/272/eng@2023-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.