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Supreme CourtDismissedPetition (Application) 16 of 2019

Non-Governmental Organizations Coordination Board v EG & 5 others

Supreme Court of Kenya
8 December 2023
William OukoW. Ouko
4,111 words in judgment
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AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Supreme Court upholds Ksh5 million costs award; consent requires court adoption to be binding.

What this practically means

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The Business Registration Service challenged a Ksh5 million costs award in a Supreme Court case. They argued the bill was filed incorrectly and the amount was too high. The court said the consent they reached with the other side was not valid because it was never formally adopted by the court. The court also found the taxing officer's fee was reasonable given the case lasted 10 years and involved complex human rights issues. The reference was dismissed.

Executive summary

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This was a reference by the Business Registration Service (applicant) against the Deputy Registrar's taxation decision awarding Kshs 5,000,000 as instruction fees to the 1st respondent in a Supreme Court appeal. The applicant sought to set aside or review downwards the instruction fees, arguing that the bill of costs was lodged contrary to rule 29 of the Supreme Court Rules (failure to submit a draft decree for approval), that the amount was manifestly excessive for a public interest matter, and that the 1st respondent's replying affidavit was defective. The single judge (Justice W. Ouko) dismissed the reference. On the preliminary issues, the court declined to strike out the replying affidavit as no formal application was made, and held that a consent dated June 29, 2023 had no legal effect as it was never formally adopted by the court. On the merits, the court found that while the 1st respondent offended rule 29, the remedy of setting aside was not appropriate since the decree was not at variance with the judgment. Applying the principles from Outa v Odoyo, the court held that the taxing officer properly exercised his discretion considering the novelty of the case (LGBTIQ human rights), the ten-year duration of litigation, the constitution of larger benches, and extensive research. The court distinguished election petition cases cited by the applicant as having shorter timelines. The reference was dismissed with each party bearing their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 1st respondent's replying affidavit is competent for lack of place of attestation
  2. 2.What is the effect of the consent dated June 29, 2023?
  3. 3.Whether the bill of costs and decree were lodged contrary to rule 29 of the Supreme Court Rules, 2020
  4. 4.Whether the taxing officer erred in principle in awarding Kshs 5,000,000 as instruction fees

Key legal issues

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01

Whether failure to comply with rule 29(4) of the Supreme Court Rules (submitting draft decree for approval) renders a bill of costs invalid

Holding

Failure to comply with rule 29 does not automatically invalidate the taxation; the remedy of setting aside is only efficacious if the decree is at variance with the judgment.

Reasoning

The court held that while rule 29 sets out steps for drawing a decree, the main consideration is that the decree must mirror the judgment. Since the applicant did not claim the decree was at variance with the judgment, setting aside the taxation would serve no purpose. The taxing officer had also ruled that rule 29(4) is optional and not a prerequisite for filing a bill of costs.

p. 9
02

Whether the taxing officer erred in awarding Kshs 5,000,000 as instruction fees

Holding

The taxing officer did not err in principle; the award was reasonable given the complexity, novelty, and duration of the case.

Reasoning

The court applied the principles from Outa v Odoyo and found that the taxing officer properly considered the novelty of the matter (LGBTIQ human rights), the extensive research, the ten-year duration of litigation, and the constitution of larger benches. The court noted that election petition cases cited by the applicant were distinguishable as they had shorter timelines. The taxing officer reduced the respondent's claim from Kshs 20,000,000 to Kshs 5,000,000, showing judicial discretion.

03

Whether the consent dated June 29, 2023 settled the issue of costs

Holding

The consent had no legal effect as it was not formally adopted by the court.

Reasoning

The court cited Geoffrey M Asanyo v Attorney-General for the proposition that a consent becomes an order only upon formal adoption by the court. Since the consent was never adopted, it could not settle the issue of costs between the parties.

p. 7

Legal principles established

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  • A consent becomes a court order only if formally adopted by the court.
  • A certificate of taxation is set aside only for error of principle, manifestly excessive fee, or inconsistency with similar awards.
  • A single judge will not interfere with a taxing officer's decision merely because they would have awarded a different figure.
  • Failure to comply with rule 29 (submitting draft decree) does not invalidate taxation; setting aside is only if the decree is at variance with the judgment.
  • Taxing officers have discretion to award fees based on complexity, novelty, and duration of the case.

Court orders

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  1. 1.The reference dated September 28, 2023 be and is hereby dismissed
  2. 2.Parties shall bear their own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

William Ouko
W. OukoSCJ
Currently serving
majority

Wrote the judgment

On appeal from
Supreme Court of Kenya (Deputy Registrar)
Jurisdiction invoked
sections 3(d)(e), 3A, 11 and 23(2)(e) of the Supreme Court Act, 2011; rules 15(2), 29(4) and 62 of the Supreme Court Rules, 2020

Relief refused

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Setting aside and/or reviewing downwards the Deputy Registrar's decision on taxation of instruction fees at Kshs 5,000,000

No error of principle or manifestly excessive award demonstrated; the taxing officer properly exercised discretion

p. 11

Costs

Parties shall bear their own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

a consent by parties becomes an order of the court only once it has been formally adopted by the court
p. 7 Effect of consent orders
A certificate of taxation will be set aside, and a single Judge can only interfere with the taxing officer's decision on taxation if; a. there is an error of principle committed by the taxing officer; b. the fee awarded is shown to be manifestly excessive or is so high as to confine access to the court to the wealthy
p. 9 Principles for setting aside certificate of taxation
The single Judge will normally not interfere with the decision of the taxing officer merely because the Judge believes he would have awarded a different figure had he been in the taxing officer's shoes
p. 10 Scope of review of taxation by single judge

Key timeline

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2023-06-29
Parties entered a consent on costs, but it was never formally adopted by the court.
2023-09-28
Business Registration Service filed a reference challenging the taxation of costs.
2023
Supreme Court dismissed the reference, upholding the Ksh5 million instruction fees award.

Practical implications

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For lawyers

Formal adoption of consents is critical

Ensure any consent with opposing parties is formally adopted by the court as an order. Without adoption, the consent has no legal effect and cannot settle issues like costs. Also, challenging a taxation decision requires showing an error of principle, not just disagreement with the amount.

For businesses

Costs can be substantial in complex cases

Businesses involved in long-running or novel litigation should anticipate significant costs awards. The court upheld Ksh5 million in instruction fees for a 10-year human rights case. When budgeting for legal disputes, factor in that courts will defer to taxing officers' discretion on fees.

For individuals

Consent agreements need court approval

If you reach a settlement or agreement with the other side in a court case, do not assume it is binding until the court formally adopts it as an order. This case shows that an unadopted consent has no legal effect, so you must follow up to ensure it is entered.

Frequently asked questions

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What is the effect of a consent agreement in Kenyan court cases?+

A consent agreement only becomes binding if the court formally adopts it as an order. If not adopted, it has no legal effect. Always ensure the consent is filed and adopted by the judge.

Can I challenge a court fee award if I think it's too high in Kenya?+

Yes, but only on limited grounds: error of principle, manifestly excessive fee, or inconsistency with similar awards. The court will not change the amount just because it would have awarded a different figure.

What happens if a bill of costs is filed without a draft decree in Kenya?+

It does not automatically invalidate the taxation. The court will only set aside the taxation if the decree is at variance with the judgment. The rule on submitting a draft decree is not a strict prerequisite.

How are instruction fees calculated in Kenyan Supreme Court cases?+

The taxing officer considers factors like complexity, novelty, duration of the case, and research required. Courts give discretion to the taxing officer and will not interfere unless there is a clear error of principle.

Later judgments citing this (18)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Non-Governmental Organizations Coordination Board v EG & 5 others", Case Analysis (2023). Petition (Application) 16 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/102/eng@2023-12-08

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