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MagistratePartially AllowedNot stated in the judgment· [2023] KEMC 274 (KLR)

Ngome & 30 others v Muturi & 5 others (Environment & Land Case 11 of 2021) [2023] KEMC 274 (KLR)

Environment and Land Court, Kwale (Taxation by the Deputy Registrar)
23 August 2023
2,078 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court slashed a Ksh. 3.3 million legal fees claim to Ksh. 760,400 because the lawyers could not substantiate the value of the land dispute.

What this practically means

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Executive summary

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This ruling by the Deputy Registrar of the Environment and Land Court at Kwale determines a Bill of Costs dated March 10, 2023, lodged by the six Respondents in the main suit following the withdrawal, with costs, of an Originating Summons (filed March 18, 2020 at the Environment and Land Court at Mombasa) by the 31 Applicants on November 9, 2022. The Bill was drawn at Ksh. 3,309,833.33 under Schedule 6 of the Advocates (Remuneration) (Amendment) Order, 2014; the Respondents objected only to items 1 (instruction fees) and 10 (getting up fees), admitting the rest, taxed as drawn at Ksh. 80,400. On instruction fees drawn at Ksh. 2,413,825, the court found the value of the subject matter (land parcel Kwale/Mnanasini/721, claimed for adverse possession) could not be discerned from the pleadings, any judgment or any settlement - the asserted value of Ksh. 106,255,000 was unsupported, and the Ksh. 6,000,000 purchase price was not traceable on the record. Applying Joreth Limited v Kigano & Associates and considering the nature of the suit, the large agricultural acreage, the parties' stakes and the absence of anything novel, the taxing officer allowed Ksh. 510,000, taxing off Ksh. 1,903,825. On getting up fees claimed at Ksh. 804,608.33, the court held that although the suit was not certified for trial, the Notice of Preliminary Objection provoked the withdrawal, so the case had been prepared for trial within condition (iii) of Schedule 6 paragraph 2; guided by the Kenya Transport Association case, Ksh. 170,000 was allowed. Item 10 (Ksh. 10,000) was taxed off for want of evidence. The Bill was taxed overall at Ksh. 760,400, with Ksh. 2,549,433.33 taxed off, and the Applicants were ordered to bear their own costs of the Bill.

Key legal issues

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01

Assessment of instruction fees where the value of the subject matter is not ascertainable from the pleadings

Holding

Instruction fees taxed at Ksh. 510,000 instead of the Ksh. 2,413,825 drawn, the court exercising its discretion under the Joreth principle

Reasoning

The court found the claimed value of Ksh. 106,255,000 was not supported by the pleadings, and the respondents' figure of Ksh. 6,000,000 could not be located on the record pre-filing. Considering the nature of the suit (land, large acreage, agricultural), the interests and stakes of the parties, and that the suit was not novel, the taxing officer fixed a fair and reasonable fee.

p. 4
02

Entitlement to getting up fees where a suit is withdrawn before trial after filing of a Notice of Preliminary Objection

Holding

Getting up fees allowed at Ksh. 170,000, the court being satisfied the case had been prepared for trial within condition (iii) of Schedule 6 paragraph 2 of the ARO

Reasoning

Although the suit was never heard, the Preliminary Objection filed and served provoked the respondents to withdraw the suit. The advocate's industry in preparing to face the adversary went beyond the paid instruction fees, satisfying the disjunctive conditions of Schedule 6 paragraph 2, which require the taxing officer to be satisfied the case was prepared for trial in cases not heard.

p. 5
03

Compliance of the Bill of Costs with Rule 69 of the Advocates (Remuneration) Order

Holding

The Bill was confusingly drawn and offended Rule 69 by bundling getting up fees within item 1 instead of as a separate item

Reasoning

The court observed that the defective drafting explains why the respondents only objected to items 1 and 10, under the impression that getting up fees formed part of item 1. Getting up fees should be an item of their own.

p. 3

Legal principles established

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  • The value of the subject matter for taxation of instruction fees is to be determined from the pleadings, judgment or settlement; if not ascertainable, the taxing officer may use discretion considering the nature and importance of the cause, the interests of the parties, the general conduct of proceedings and other relevant circumstances (Joreth Limited v Kigano & Associates)
  • Getting up fees partially overlap with instruction fees but represent the advocate's work in facing the adversary, preparing pleadings and process documents for lodgment and service

Court orders

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  1. 1.The unopposed items of the Bill are taxed as drawn at Ksh. 80,400
  2. 2.Instruction fees taxed at Ksh. 510,000, with Ksh. 1,903,825 taxed off
  3. 3.Getting up fees allowed at Ksh. 170,000, with Ksh. 634,608.33 taxed off
  4. 4.Item 10 drawn at Ksh. 10,000 taxed off as unsupported by evidence
  5. 5.The Bill of Costs dated March 10, 2023 and filed March 20, 2023 is taxed at Ksh. 760,400; a total of Ksh. 2,549,433.33 is taxed off
  6. 6.The Applicants shall bear their own costs of the Bill of Costs

Authorities

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Legislation

  • Advocates (Remuneration) (Amendment) Order, 2014 (Legal Notice No. 35)Schedule 6, paragraph 2 (including conditions (i), (ii), (iii))
  • Advocates (Remuneration) Order, 1962Rule 69
  • Civil Procedure RulesOrder 37; Order 3 Rule 2; Order 7 Rule 5

Cases cited (2)

  • Joreth Limited v Kigano & Associates
    [2002] eKLR
  • Shamshudin Khosla As Chairman, Abdul Gafur Pasta as Honorary Secretary & Mohamed Bayusuf as Treasurer [On their Own Behalf and on Behalf of] The Members Of Kenya Transport Association v Kenya Revenue Authority
    [2011] eKLR
Jurisdiction invoked
Taxation of a Bill of Costs under the Advocates (Remuneration) (Amendment) Order, 2014 (Legal Notice No. 35), Schedule 6, following withdrawal of an Originating Summons filed at the Environment and Land Court at Mombasa

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, "Ngome & 30 others v Muturi & 5 others (Environment & Land Case 11 of 2021) [2023] KEMC 274 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/274/eng@2023-08-23

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