Automated Summary
Key Facts
The case involves a dispute between Nyamu Nyaga & Co Advocates (applicant) and Meru University of Science and Technology (respondent) over the taxation of legal fees. The applicant sought to set aside a taxing officer's decision that awarded Ksh 10,000,000 as instruction fees for defending a constitutional petition. The applicant argued the correct value of the subject matter (land parcels) was Ksh 2,200,000,000 as per an annexed valuation report, which should have resulted in instruction fees of Ksh 33,640,000. The court ruled in favor of the applicant, setting aside the taxing officer's decision and directing re-taxation using the correct valuation amount.
Issues
- Who should bear the costs of this application.
- Whether the reference dated 6th March 2023 is merited.
- Whether the ruling delivered on 3rd February 2023 by the Taxing Master should be set aside.
Holdings
- Unobjected items in the bill of costs remain as originally taxed by the Taxing Officer.
- Each party is to bear its own costs for this application.
- The applicant's amended bill of costs was remitted to a different Taxing Officer for reconsideration using the KES 2,200,000,000 valuation as the subject matter value.
- The court set aside the Taxing Officer's decision on instruction fees and other objected items due to an error in not considering the valuation report annexed to the petition.
Remedies
- Each party is directed to bear its own costs for this application. This includes the applicant (Nyamu Nyaga & Co Advocates) and the respondent (Meru University of Science and Technology).
- The Taxing Officer's decision dated 3rd February, 2023 with respect to item 4 on instruction fees and all other items objected to are set aside. This includes the ruling on the valuation of the subject matter and the taxation of the amended bill of costs.
- The applicant's amended bill of costs dated 17th October, 2022 is remitted back to a different Taxing Officer with explicit directions to reconsider the items by applying the sum of Ksh 2,200,000,000 as the value of the subject matter, as pleaded in the petition.
- The other items not objected to in the amended bill of costs remain as taxed by the Taxing Officer. No changes are made to these unchallenged portions of the bill.
Legal Principles
The court applied the Advocates (Remuneration) Amendment Order 2014, specifically Schedule 6 paragraph 1(j), which governs fees for constitutional petitions. It emphasized that the value of the subject matter (KES 2.2 billion) must be considered in determining instruction fees under Rule 11(2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013. The ruling distinguished this from cases like Unlimited (Africa) Limited v Muchanga Investment Limited (2017) eKLR, noting that valuation reports annexed to petitions can be used when the value is pleaded and undisputed.
Precedent Name
- Joreth Limited v Kigano & Associates Advocates
- Unlimited (Africa) Limited v Muchanga Investment Limited
- Premchand Raichand Limited & another v Quarry Services of East Africa Limited and another
- First American Bank of Kenya v Shah and others
- S.G Mbaabu & Co. Advocates v Joseph Muoki Kakenyi & 2 others
Cited Statute
- Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules
- Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
- Advocates (Remuneration) Amendment Order 2014
- Constitution of Kenya
- Advocates (Remuneration) Order
Judge Name
CK YANO
Passage Text
- The applicant's amended bill of costs dated 17th October, 2022 is remitted back to a different Taxing Officer with directions to reconsider the said items by applying the sum of ksh2,200,000,000/ as the value of the subject matter.
- It is my opinion that the value of the subject matter of the petition was known contrary to the finding of the Taxing Officer.