Wakilii

A.G. of Kenya v Nyong'o and Others (Taxation Cause 2 of 2010; Taxation Reference 5 of 2010)

East African Court of Justice · [2011] EACJ 1 · 2011 Reference Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Taxation reference from taxing officer's award of costs
Decision
Instruction fees reduced from USD 450,000 to USD 250,000; parties to bear own costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that the taxing officer's award of USD 450,000 as instruction fees for two applications was unreasonable and excessive under Rule 9(1) of the Court's Rules. The taxing officer failed to adequately justify how he arrived at a figure over USD 225,000 above the prescribed minimum of USD 100. The Court reduced the instruction fees to USD 250,000, finding this amount met the justice of the case while maintaining consistency with prior awards and ensuring costs remain reasonable and accessible.

Outcome

Instruction fees reduced from USD 450,000 to USD 250,000; parties to bear own costs

Facts

The respondents had successfully litigated Reference No. 1 of 2006 before the East African Court of Justice. They filed a bill of costs claiming USD 5,622,528.69, which was taxed on December 19, 2008. The applicant (Attorney General of Kenya) filed a taxation reference out of time, which was dismissed. The applicant then filed two applications: one for extension of time to file the reference and another for extension of time to appeal. These two applications generated a bill of costs which the taxing officer taxed at USD 528,802.24, including instruction fees of USD 450,000. The Attorney General challenged this award as excessive, arguing the taxing officer should have applied Rule 9(1) of the Second Schedule which prescribes a minimum fee of USD 100, and that the proper instruction fees should have been approximately USD 28,000 based on the value of the subject matter.

Issues

  1. Whether the taxing officer's award of USD 450,000 as instruction fees for two applications was excessive and unreasonable.
  2. Whether the taxing officer applied the correct legal principles and scale in assessing instruction fees under Rule 9(1) of the Second Schedule.
  3. Whether the Court should interfere with the taxing officer's discretion in awarding costs.

Orders

  • The instruction fees of USD 450,000 are reduced to USD 250,000 (excluding VAT).
  • Each party to bear their own costs of the taxation reference.

Rules and key headnotes

Civil Procedure — Taxation of Costs — Instruction Fees — Discretion of Taxing Officer
The allowance for instruction fees is a matter peculiarly within the taxing officer's discretion, and courts are reluctant to interfere with that discretion unless it has been exercised injudiciously.
Civil Procedure — Taxation of Costs — Standard of Review — Interference by Court
A judge will not alter a fee allowed by a taxing officer merely because in his opinion he should have allowed a higher or lower amount. The court will interfere only if the taxing officer is shown to have gone wholly wrong or if the error substantially affected the decision on quantum and upholding the amount would cause injustice to one of the parties.
Civil Procedure — Taxation of Costs — Reasonableness Test — Premchand Raichand Principles
In deciding what constitutes reasonable instruction fees, the taxing officer must apply four principles: (i) costs must not rise to a level that confines access to courts to the wealthy; (ii) the successful litigant ought to be fairly reimbursed for costs incurred; (iii) the general level of remuneration must attract recruits to the profession; and (iv) there should be consistency in awards made.
Civil Procedure — Taxation of Costs — Instruction Fees — Interpretation of Rule 9(1)
Under Rule 9(1) of the East African Court of Justice Rules, USD 100 represents the minimum (floor) allowable instruction fee, while the ceiling is left to the taxing officer's discretion to determine what is reasonable in the circumstances of each case.
Civil Procedure — Taxation of Costs — Duty to Justify Award — Reasoned Decision
A taxing officer must make a serious attempt to justify and explain how he arrived at an instruction fee figure, particularly when it significantly exceeds the prescribed minimum. Failure to do so renders the assessment unreasonable and justifies interference by the court.
Civil Procedure — Taxation of Costs — Consistency Principle — Comparative Awards
Consistency in the award of costs is a ground for judicial intervention in taxation. Courts should ensure that costs awards remain proportionate and consistent with previous awards in similar matters to maintain predictability and fairness in the administration of justice.

Legislation cited (3)

  • East African Court of Justice Rules of Procedure Rule 114
  • East African Court of Justice Rules of Procedure Second Schedule Rule 9(1)
  • East African Court of Justice Rules of Procedure Second Schedule Rule 1(b)

Cases cited (13)

  • Joreth Ltd v Kigano & Associates (2001) EA 92
  • Bunson Travel v Kenya Airways (Civil Case No. 304 of 2004)
  • Maboko Distributors Ltd v Co-operative Bank of Kenya & Another (Civil Case No. 690 of 2002)
  • F. M. Mulwa Advocates v Patricia Muthike Ndeti (Civil Case No. 789 of 2005)
  • Kibet & Company Advocates v Central Bank of Kenya (Misc. No. 1489 of 2001)
  • Premchand Raichand Ltd v Quarry Services of East Africa Ltd [1972] EA 162
  • Modern Holdings (EA) Limited v Kenya Ports Authority (Taxation Reference No. 4 of 2010)
  • Bank of Uganda v Banco Arabi Espaniol (Application No. 29 of 1999)
  • Calist Andrew Muntela and Two Brothers v The EAC (Taxation Cause No. 1 of 2006)
  • James Katabazi and 21 Others v The Attorney General of Uganda (Taxation Cause No. 5 of 2008)
  • Anyang Nyong'o and Others v The Attorney General of Kenya (Taxation Cause No. 6 of 2008)
  • D'Souza v Ferrao [1960] EA 602
  • Devshi Dhanti and Others v Kanti Narah Patel and Others (No. 2) [1976-80] 1024

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

A.G. of Kenya v Nyong'o and Others (Taxation Cause 2 of 2010; Taxation Reference 5 of 2010) [2011] EACJ 1 (23 February 2011)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.