Ngome & 30 others v Muturi & 5 others (Environment & Land Case 11 of 2021) [2023] KEMC 274 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Assessment of instruction fees where the value of the subject matter is not ascertainable from the pleadings
Instruction fees taxed at Ksh. 510,000 instead of the Ksh. 2,413,825 drawn, the court exercising its discretion under the Joreth principle
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.
Entitlement to getting up fees where a suit is withdrawn before trial after filing of a Notice of Preliminary Objection
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
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.
Compliance of the Bill of Costs with Rule 69 of the Advocates (Remuneration) Order
The Bill was confusingly drawn and offended Rule 69 by bundling getting up fees within item 1 instead of as a separate item
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.
Legal principles established
#- 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
#- 1.The unopposed items of the Bill are taxed as drawn at Ksh. 80,400
- 2.Instruction fees taxed at Ksh. 510,000, with Ksh. 1,903,825 taxed off
- 3.Getting up fees allowed at Ksh. 170,000, with Ksh. 634,608.33 taxed off
- 4.Item 10 drawn at Ksh. 10,000 taxed off as unsupported by evidence
- 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.The Applicants shall bear their own costs of the Bill of Costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.