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ELCPartially AllowedChamber Summons dated 27th March, 2023 (arising from suit over L.R Dagorreti/Riruta/3094 and 3096)· [2024] KEELC 1416 (KLR)

Peter Magwa (Suing on behalf of the 3rd Plaintiff/Applicant) v 1st & 2nd Defendants

Environment and Land Court
14 March 2024
4,673 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court slashed disputed legal fees from Kshs 900,000 to Kshs 256,250, ruling the Taxing Master failed to justify charging twelve times the minimum.

What this practically means

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Executive summary

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By Chamber Summons dated 27th March, 2023 under Section 3A of the Civil Procedure Act, Rule 11(2) and 11(4) of the Advocates Remuneration Order and Order 42 Rule 6 of the Civil Procedure Rules, the 3rd Plaintiff, through his Director Peter Magwa, sought re-taxation of the instruction fees element of a Party and Party Bill of Costs taxed at Kshs 952,358 on 14th March, 2023, with instruction fees set at Kshs 900,000, or alternatively remittance to a different Taxing Officer. He argued the award was manifestly high, about twelve times the Kshs 75,000 prescribed minimum, and that the Taxing Master failed to consider the nature of the claim, the withdrawal of the suit, care and labour, and apportionment among three Plaintiffs. The Respondents opposed, contending the application was res judicata, the issues having been conclusively dealt with in a Ruling of 24th November, 2022 remitting the Bill for fresh taxation. The court framed two issues: res judicata and whether grounds existed to interfere with the Taxing Master's decision. It held the application was not res judicata because the earlier ruling concerned the taxation of 28th October, 2021, a distinct decision from that of 14th March, 2023. On the merits, applying Joreth Ltd v Kigano & Associates and related authority, the court found the subject matter value was not ascertainable from the pleadings, so the basic Schedule VI fee of Kshs 75,000 applied, reducible by 25% to Kshs 56,250 because the suit was withdrawn without full trial. The Taxing Master's failure to state the basic fee and justify the increase was an error of principle. The court exercised its discretion to re-tax, setting instruction fees at Kshs 256,250, leaving other items intact, with each party bearing its own costs.

Key legal issues

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01

Whether the application is res judicata given the prior ruling of 24th November, 2022

Holding

The application is not res judicata because the ruling of 24th November, 2022 dealt with the taxation of 28th October, 2021, whereas the present application challenges the distinct taxation decision of 14th March, 2023.

Reasoning

Applying the res judicata test (sameness of issues, parties, title, jurisdiction and finality), the court found parties and court identical but the impugned decisions different. The earlier reference attacked the use of the contractual sum as subject matter; the present application attacks manifestly excessive instruction fees based on failure to consider relevant factors. These are two distinct decisions, so no issue was conclusively determined previously and the application is not an abuse of process.

p. 5
02

Whether the Taxing Master's award of Kshs 900,000 as instruction fees was based on an error of principle

Holding

Yes. The Taxing Master failed to set out the basic scale fee before increasing it and gave no reasons justifying an award twelve times the prescribed minimum of Kshs 75,000.

Reasoning

The subject matter value was not ascertainable from the pleadings, so the Taxing Master could exercise discretion, but Schedule VI Paragraph 1 sets Kshs 75,000 as the basic fee, reducible by 25% to Kshs 56,250 because the suit was withdrawn without full trial. Authority requires the taxing officer to first find the appropriate scale fee and give reasons for any increase. Although several factors were recited, no reasons justified the magnitude of the increase, amounting to an error of principle warranting interference.

p. 7
03

What remedy follows upon finding an error of principle - remit or re-tax

Holding

The court exercised its discretion to re-tax the instruction fees itself, setting them at Kshs 256,250, an increase of Kshs 200,000 over the minimum of Kshs 56,250, considering the matter lasted less than five months before withdrawal.

Reasoning

Relying on Kipkorir Titoo & Kiara Advocates, the court noted that while the general practice is to remit quantum to the taxing officer, the judge retains discretion to deal with the matter himself where justice requires. Since only instruction fees were in dispute and the matter had been before Taxing Masters twice, the court proceeded to tax the item directly, taking into account the brief duration of the suit and the applicant's property-interest claim.

p. 8

Legal principles established

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  • A judge on a reference should not interfere with a Taxing Master's assessment of costs unless the Taxing Master misdirected himself on a matter of principle.
  • The value of the subject matter for instruction fees is ascertained from the pleadings, judgment or settlement; only where it cannot be so ascertained may the Taxing Officer exercise discretion to assess.
  • Where a suit is withdrawn or determined without full trial, the instruction fee under Schedule VI is reduced by 25%, and a Taxing Officer who departs from the basic scale fee must give reasons for the increase.

Court orders

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  1. 1.The Ruling of the Taxing Master delivered on 14th March, 2023 is reviewed and varied to the extent that the taxation of the item on instruction fees is set aside and in its place, the instruction fees is taxed at Kshs 256,250
  2. 2.The other items in the bill shall remain as taxed by the Taxing Master
  3. 3.Each party shall bear its/his own costs
Jurisdiction invoked
Sections 3A Civil Procedure Act, Rules 11(2) and 11(4) Advocates Remuneration Order and Order 42 Rule 6 Civil Procedure Rules, 2010

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, "Peter Magwa (Suing on behalf of the 3rd Plaintiff/Applicant) v 1st & 2nd Defendants", Case Analysis (2024). Chamber Summons dated 27th March, 2023 (arising from suit over L.R Dagorreti/Riruta/3094 and 3096). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1416/eng@2024-03-14

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