Ebel (Suing as the Legal Administrator of the Estate of Amolo Agenga- Deceased) v Magwanga & 3 others (Environment & Land Case E002 of 2022) [2024] KEELC 1762 (KLR)
The bottom line
#A Kenyan court threw out a Kshs. 75,000 fee award because a Kshs. 66 million property valuation sat on record, ordering fresh taxation.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the reference/application was lodged within the prescribed time
- 2.Whether the applicants established their case for grant of the orders sought in the application
Key legal issues
#Timeliness of the reference under Rule 11 of the Advocates Remuneration Order
The reference was filed within time; the applicants promptly requested the ruling and reasons, and any apparent delay was satisfactorily explained
The Taxing Master's ruling was delivered on 15th September 2023 and, by a letter of even date, the applicants sought a copy and reasons. Upon receiving the ruling on 25th September 2023 and noting it contained reasons, they lodged the reference. Applying Salat on substantial justice, the court found the application promptly on record.
Whether the instruction fee of Kshs. 75,000/- was inordinately low
Yes. The Taxing Master's finding that the value of the property was not indicated was inconsistent with the valuation report on record valuing it at Kshs. 66,276,000/-, rendering the award manifestly deficient
The applicants had filed a Valuation Report dated 24th September 2016 within their list of documents dated 6th September 2022, which valued the suit property at Kshs. 66,276,000/-. The Taxing Master nonetheless proceeded on the basis that no valuation existed. Given the high value of the land, the award was so deficient as to amount to an injustice, warranting interference under the NGO Coordination Board principles.
Legal principles established
#- A judge may interfere with a taxing officer's decision where an error of principle was committed or where the fee awarded is manifestly excessive or manifestly deficient as to amount to an injustice
Court orders
#- 1.The Deputy Registrar's ruling on the 1st and 2nd defendants' bill of costs dated 25th July 2023 delivered on 15th September 2023 is set aside (Prayer 1 allowed)
- 2.The bill of costs is referred back with directions for proper taxation (Prayer 2 allowed)
- 3.Costs of the reference awarded to the defendants/applicants (Prayer 4 allowed)
- 4.The alternative prayer for remission to a different Taxing Master was not granted as the court allowed the application in terms of Prayers 1, 2 and 4 only
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Rule 11(2) of the Advocates Remuneration Order; Order 21 Rule 9A of the Civil Procedure (Amendment) Rules 2020; Sections 1A, 3A and 3B of the Civil Procedure Act, Chapter 21 Laws of Kenya
Relief refused
#Remission of the bill of costs before a different Taxing Master
The court allowed the application only in terms of Prayers 1, 2 and 4, omitting Prayer 3 which sought remittance before a different Taxing Master
Costs
Costs of the reference awarded to the defendants/applicants (Prayer 4 of the application allowed)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Thus, it is my conserved view that the instant application is promptly on record. Bearing in mind the decision in Nicholas Kiptoo Arap Korir Salat -vs- Independent Electoral and Boundaries Commission & 7 others (2014) eKLR, the apparent delay has been satisfactorily explained herein.
the value of the land which is the subject matter of this application is manifestly high and that the instruction fees of Kshs. 75 000/= awarded by the Taxing Master is extremely low.
the Chambers Summons application dated 4th October 2023 is merited and the same is allowed in terms of Prayers 1, 2 and 4.
Issues in the judgment
#The Taxing Master's basis for the award conflicts with the record - she found no valuation report was filed although the applicants had filed one; this inconsistency grounded the court's interference
The judgment does not expressly name the court in which it is delivered; only the station (Homa Bay) appears in the delivery passage
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ebel (Suing as the Legal Administrator of the Estate of Amolo Agenga- Deceased) v Magwanga & 3 others (Environment & Land Case E002 of 2022) [2024] KEELC 1762 (KLR)", Case Analysis (2024). Chamber Summons dated 4th October 2023 (arising from 1st and 2nd defendants' bill of costs dated 25th July 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1762/eng@2024-04-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.