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

East African Court of Justice · [2011] EACJ 4 · 2011 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Taxation of costs arising from two unsuccessful applications by the Attorney General of Kenya for extension of time
Decision
Bill of costs partly allowed and taxed at USD 528,802.24

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Taxing Officer held that while the applications involved significant complexity, novelty, and professional responsibility justifying substantial instruction fees, the amounts claimed were excessive. The instruction fee for each application was taxed at USD 225,000.00, resulting in a total taxation of USD 528,802.24 including undisputed items and VAT.

Outcome

Bill of costs partly allowed and taxed at USD 528,802.24

Facts

The Attorney General of Kenya filed two applications before the East African Court of Justice: Application No. 4 of 2009 seeking extension of time to file a reference, and Application No. 1 of 2010 seeking extension of time to serve a memorandum and record of appeal. Both applications were dismissed with costs awarded against the Attorney General. The successful parties, represented by Kilonzo & Co Advocates, filed a bill of costs claiming USD 1,091,745.00 for costs incurred in defending the two applications. The parties agreed on most items totaling USD 5,864.00, but disputed the instruction fees claimed at USD 540,540.00 for each application. The Attorney General argued the fees were excessive and proposed USD 10,000.00 per application, while the applicants maintained the fees were reasonable given the complexity, novelty, and professional responsibility involved.

Issues

  1. Whether the instruction fees claimed of USD 540,540.00 for each of two applications were reasonable.
  2. What amount should be awarded as instruction fees taking into account the complexity, novelty, and professional responsibility involved in the applications.

Orders

  • Items 2-23 and 25-35 of the bill of costs totaling USD 5,864.00 taxed and awarded as claimed.
  • Item 1 (instruction fee) taxed at USD 225,000.00.
  • Item 24 (instruction fee) taxed at USD 225,000.00.
  • Total bill taxed at USD 528,802.24 including 16% VAT of USD 72,938.24.

Rules and key headnotes

Taxation of Costs — Instruction Fees — Discretion of Taxing Officer
The taxing officer has discretion under Rule 9 of the Second Schedule to the Rules of Procedure of the East African Court of Justice to assess instruction fees as he considers reasonable, taking into account the nature and importance of the matter, the interest of the parties, the general conduct of proceedings, and all other relevant circumstances.
Taxation of Costs — Factors in Assessment — Complexity and Novelty
In assessing instruction fees, the taxing officer may consider the complexity of the matter, the professional responsibility undertaken, the extent of research required, and whether the case was novel and landmark in the development of jurisprudence, even where the applications were for extension of time.
Taxation of Costs — Indemnity Principle — Balance with Access to Justice
While the court should ensure that costs do not hinder public access to justice or portray courts as only for the wealthy, it must also discharge its function to do justice by awarding costs to indemnify a successful party for expenses reasonably incurred in litigation.

Legislation cited (1)

  • Rules of Procedure of the East African Court of Justice, Second Schedule, Rule 9

Cases cited (2)

  • Taxation Cause No. 6 of 2008
  • Joreth Limited v. Kigano & Associates (Civil Appeal No. 66 of 1999)

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 Reference 2 of 2010) [2011] EACJ 4 (22 June 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.