Peter Magwa (Suing on behalf of the 3rd Plaintiff/Applicant) v 1st & 2nd Defendants
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the application is res judicata given the prior ruling of 24th November, 2022
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.
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.
Whether the Taxing Master's award of Kshs 900,000 as instruction fees was based on an error of principle
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.
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but Schedule VI Paragraph 1 sets Kshs 75,000 as the basic fee, reducible by 25% to Kshs 56,250 because the suit was withdrawn without full trial.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.
What remedy follows upon finding an error of principle - remit or re-tax
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.
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.
Legal principles established
#- 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
#- 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.The other items in the bill shall remain as taxed by the Taxing Master
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.