Kipkorir, Titoo & Kiara Advocates v June Nduta Kinyua & another [2012] KECA 52 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that lawyers' fees in probate fights must be based on what their client inherits, not the full value of the estate.
What this practically means
#Executive summary
#Key legal issues
#Correct basis for pegging instruction fees where an advocate acts for a beneficiary in a contested probate matter
Instruction fees must be based on the value of the client's interest in the estate - here 1/6th of the gross estate of Kshs.251 million (Kshs.41.8 million) plus the trust fund - not the gross value of the whole estate.
The deceased's Will identified the 1st respondent as a beneficiary both of the trust fund and of the residue as an issue of Ernest Kinyua Kamau. Since her interest could only be deduced from the gross value of the estate, the applicable scales under Schedule X Parts A and B of the Advocates Remuneration Order had to be applied to her interest. The taxing officer's use of the whole estate value ignored a material consideration and was an error of principle.
Whether the taxing officer's award of Kshs.20 million instruction fees was sustainable
No - the award of Kshs.20 million, about 50% of the 1st respondent's interest, was excessive, unconscionable and unjustified, and rested on the error of principle of pegging fees on the whole estate.
Taking the estate at Kshs.251 million, the 1st respondent's share was approximately Kshs.41.8 million. The Kshs.20 million allowed was about half of that interest, an excessive figure arrived at by misapplying the scale. Although the High Court Judge was correct to find the taxing officer erred, the Judge failed to give proper guidance on the principle for valuing the subject matter.
Whether the High Court Judge misdirected himself in limiting the 1st respondent's interest to the Kshs.10 million trust fund
Yes - Clause 8 of the Will provided for not less than Kshs.10 million for the trust fund, and Clause 14 made the 1st respondent a beneficiary of the residue, so her interest exceeded the trust fund.
The Judge confined the subject matter to the trust fund, but the Will's Clause 8 set aside not less than Kshs.10 million, which could be more, and Clause 14 expressly identified the beneficiaries to include the issues of Ernest Kinyua Kamau. The 1st respondent was thus entitled to a share of the residue, making the gross capital value of the estate relevant to computing her interest.
Whether the court should re-appraise evidence or take additional evidence on the value of the estate
No - the Rule 29 power is limited to appeals from a superior court exercising original jurisdiction, and given inconclusive evidence the court could not fault the adoption of the Kshs.251 million estimate.
The appellant sought reappraisal of the succession cause record and additional evidence on the estate's value. Rule 29(1) confined this power to original-jurisdiction appeals. Faced with estimates ranging from Kshs.251 million to Kshs.4 billion and inconclusive evidence, the court accepted the lower figure of Kshs.251 million already adopted by the taxing officer and the Judge.
Legal principles established
#- In contested probate matters, advocate/client costs under the Advocates Remuneration Order are calculated from the party and party scale increased by one-half, pegged on the gross capital value of property comprised in the grant.
- Where an advocate acts for a beneficiary, instruction fees in a contested probate matter must be pegged on the value of the beneficiary's interest in the estate, not the gross value of the whole estate.
- Basing instruction fees on the gross value of the estate instead of the client's interest in it is an error of principle, being a failure to take into account a material consideration.
- Instruction fees for lodging an objection to a grant or a citation under the Law of Succession Act are discretionary with a statutory minimum and are not calculated on the gross capital value of the estate.
- The power to take additional evidence under Rule 29(1) of the Court of Appeal Rules applies only to appeals from a superior court exercising original jurisdiction.
Court orders
#- 1.Appeal allowed
- 2.Orders of the High Court dated 6th May, 2010 allowing the Reference with costs and remitting the advocate/client bill of costs to another taxing officer set aside
- 3.In lieu thereof, matter remitted to the High Court for rehearing of the Reference regarding the instruction fees only before another Judge
- 4.Costs of the appeal to be costs in the Reference
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Misc. Appl. No. 585 of 2008
- Jurisdiction invoked
- Appeal under the Court of Appeal Rules against the High Court's ruling on a reference under Rule 11(2) of the Advocates Remuneration Order; judgment delivered pursuant to Rule 32(3) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Republic v National Land Commission & Twiga Estate Squatters Society (Environment & Land Case 10 of 2017) [2018] KEELC 1269 (KLR)[2018] KEELC 1269 (KLR)19 Oct 2018
- Twiga Estate Squatters Society v Municipal Council of Ruiru & 8 others [2018] KECA 349 (KLR)[2018] KECA 349 (KLR)27 Apr 2018
- Advocates' Notice of Motion dated 5th August 2014 (Advocates v Clients) - Advocates' Bill of Costs Reference[2015] KEHC 8154 (KLR)12 Feb 2015
Cite this brief
#Cite this brief
Caselaw, "Kipkorir, Titoo & Kiara Advocates v June Nduta Kinyua & another [2012] KECA 52 (KLR)", Case Analysis (2012). Civil Appeal 170 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/52/eng@2012-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.