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Nyong'o and Others v A.G. of Kenya and Others (Taxation 5 of 2008)

East African Court of Justice · Nyong'o and Others v A.G. of Kenya and Others (Taxation 5 of 2008) [2008] EACJ 3 (19 December 2008) · 2008 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Taxation of bill of costs following successful reference
Decision
Bill of costs taxed at USD 2,033,164.99 payable by the respondents to the applicants

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Taxing Officer taxed the professional fee at USD 1,508,000 (including VAT), finding the claimed USD 4,339,416.89 excessive but the respondent's proposed USD 5,000 unreasonably low given the complexity, novelty and importance of the underlying reference. Disbursements were allowed where supported by receipts; claims without documentary evidence were taxed off. Total costs taxed at USD 2,033,164.99.

Outcome

Bill of costs taxed at USD 2,033,164.99 payable by the respondents to the applicants

Facts

The applicants filed a bill of costs claiming USD 5,622,528.69 for costs incurred in conducting Reference No. 1 of 2006 before the East African Court of Justice. The claim included professional fees of USD 4,339,416.89 and various disbursements for filing fees, travel, accommodation, photocopying and other expenses incurred between Nairobi and Arusha. The reference was described as novel and landmark, leading to amendment of the Treaty and division of the Court into two divisions. It generated nine related applications including five intervener applications. Most disbursement items were agreed between the parties but the professional fee was disputed, with the respondent proposing USD 5,000 as reasonable. Some disbursement items lacked supporting receipts.

Issues

  1. What is the appropriate professional fee to be awarded on taxation of a bill of costs in a complex and novel reference?
  2. Whether the claimed disbursements for travel, accommodation, photocopying and other expenses were reasonably incurred and properly supported by documentary evidence.

Orders

  • Professional fee (item 1) taxed at USD 1,508,000 (including 16% VAT).
  • Getting up fees (item 2) taxed at USD 502,666 (one third of professional fee).
  • Items 3 to 85 taxed as presented.
  • Items 86, 87, 88, 89, 90, 91, 93, 94, 95, 96 on mileage, accommodation and meals taxed as presented.
  • Items 97, 98, 107, 109, 110, 115, 116, 118, 121, 124 on photocopying expenses taxed as presented.
  • Items 92, 99 to 105 (travel, meals and accommodation for clerk) taxed off for lack of receipts (USD 3,743).
  • KShs 200,000 (USD 2,857) taxed off per consent order for respondent's wasted court attendance expenses.
  • Total bill taxed at USD 2,033,164.99.

Rules and key headnotes

Taxation of Costs — Professional Fees — Principles for Assessment
In taxing professional fees, the taxing officer must consider the complexity of the case, the volume and magnitude of documentary evidence, the urgency of the brief, the absence of developed jurisprudence, the importance of the case, the number of interlocutory applications generated, the research work involved, the time employed, the value of the subject matter, and the calibre of counsel involved.
Taxation of Costs — Professional Fees — Discretion of Taxing Officer
The taxing officer has discretion to award professional fees exceeding the scale of charges depending on the nature and complexity of the case, and taxation of costs is not a mathematical exercise but a matter of opinion based on experience and laid down principles.
Taxation of Costs — Disbursements — Burden of Proof
Where a party claims disbursements supported by receipts issued by a service provider, it is not proper to place the burden of proving the genuineness of those receipts on the receiving party unless the objecting party produces evidence (such as from the Registrar of Companies) that the service provider does not exist.
Taxation of Costs — Disbursements — Documentary Evidence Required
Claims for disbursements that are not supported by receipts or other documentary evidence will be taxed off, as the court cannot satisfy itself that such expenses were actually incurred by the party.
Taxation of Costs — Purpose of Costs Awards — Indemnity Principle
The purpose of awarding costs to a successful party is to indemnify that party for expenses reasonably incurred, having been unjustly compelled to initiate or defend litigation. If the court does not fully indemnify the party for all costs reasonably incurred, it will have failed to discharge its function, though this must be balanced against ensuring access to justice.

Cases cited (6)

  • Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd and Others (1972) EA 162
  • James Katabazi and Others v Secretary General of East African Community and Another (EACJ Taxation Cause No. 5 of 2008)
  • First American Bank of Kenya v Shah and Others (2001) 1 EA 64
  • Simpsons Motor Sales (London) Ltd v Hendon Corporation (1964) 3 All ER 833
  • President of the Republic of South Africa and Others v Gauteng Lions Rugby Union (2001) ZACC 5
  • City of Cape Town v Arun Property Development (PTY) Ltd and Another (2008) ZAWCHC

Full judgment

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

Nyong'o and Others v A.G. of Kenya and Others (Taxation 5 of 2008) [2008] EACJ 3 (19 December 2008)
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.