Wakilii

Attorney General of Kenya v Nyongo and Others (Taxation Reference No.5 of 2010)

East African Court of Justice · [2011] EACJ 62 · 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
Taxation reference partly allowed; instruction fees reduced from USD 450,000 to USD 250,000

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The Court held that the taxing officer's award of USD 450,000 as instruction fees 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 minimum USD 100 prescribed. The Court reduced the instruction fees to USD 250,000, finding this amount met the justice of the case while maintaining consistency with prior taxation awards in the Court.

Outcome

Taxation reference partly allowed; instruction fees reduced from USD 450,000 to USD 250,000

Facts

The Respondents had previously filed Reference No. 1 of 2006 in the East African Court of Justice, which was heard and determined in 2007. Following the judgment, the Respondents filed a bill of costs claiming USD 5,622,528.69, which was taxed on December 19, 2008. The Applicant filed a reference from that taxation out of time, and subsequently filed Application No. 4 of 2009 for extension of time, which was dismissed with costs. The Applicant then appealed and filed another application to extend time to appeal out of time. The Respondents filed Taxation Cause No. 2 of 2010 in respect of these two applications. The taxing officer taxed the bill at USD 528,802.24, with instruction fees of USD 450,000 for both applications. The Attorney General of Kenya challenged this award as excessive, punitive, and not based on proper legal principles.

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 exercised his discretion judiciously in taxing the bill of costs.
  3. Whether the Court should interfere with the taxing officer's assessment of 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 reference.

Rules and key headnotes

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.
Taxation of Costs — Grounds for Judicial Interference
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.
Taxation of Costs — Test of Reasonableness — Premchand Principles
In deciding what is a reasonable instruction fee, the taxing officer must follow four principles: (i) costs should not rise to such a level as to confine 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.
Taxation of Costs — Duty to Justify Award
Where a taxing officer awards instruction fees significantly above the minimum prescribed by the rules, the taxing officer must make a serious attempt to justify or explain how he arrived at the figure. Failure to do so renders the assessment unreasonable and subject to interference by the Court.
Taxation of Costs — Consistency in Awards
Consistency in the award of costs is a ground for judicial intervention in taxation. The cost of doing business in the Court should be kept to a level that is reasonable, affordable, and should not deter any citizen from seeking justice, while remaining proportionate for the purpose of remunerating the advocate.

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

↓ Download PDF

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

Attorney General of Kenya v Nyongo and Others (Taxation Reference No.5 of 2010) [2011] EACJ 62 (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.