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Court of AppealPartially AllowedCivil Appeal No. 199 of 2002· [2012] KECA 245 (KLR)

Machira & Co. Advocates v Arthur K. Magugu & another [2012] KECA 245 (KLR)

Court of Appeal of Kenya
2 March 2012
EGE.M. GithinjiHOH.M. OkwenguDavid Kenani MaragaD.K. Maraga
2,156 words in judgment
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The bottom line

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The Court of Appeal restored a Kshs.4.5 million legal fees bill against former clients because their objection did not specify which costs they disputed.

What this practically means

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Executive summary

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Machira & Co. Advocates acted for the Magugus in Nairobi HCCC No. 749 of 1998 until the clients withdrew instructions and engaged another firm. The advocates filed their client/advocate bill of costs, taxed at Kshs.4,500,000 by the Deputy Registrar. The clients sought to have the taxation set aside by reference to the High Court under Sections 44 and 51 of the Advocates Act and Rules 11 and 13 of the Advocates Remuneration Order. Mwera J dismissed their first reference as incompetent but, in a ruling of 7th February 2002, allowed it on the basis that the taxation was premature under Paragraph 62A of the Remuneration Order, which contemplates a single combined bill by the advocate finally on record. The Court of Appeal allowed the advocates' appeal. It held that the Remuneration Order is a complete code providing no appeals from a taxing master, only references under Rule 11, and that a notice of objection must specify the items objected to; the clients' notice was fatally defective and the reference should have been struck out. It further held that Paragraph 62A(1) applies only to party and party costs, so an advocate whose instructions are terminated may have his bill taxed immediately without waiting for the suit to conclude. The Court set aside the High Court ruling, dismissed the reference, restored the taxing master's certificate of Kshs.4,500,000, and awarded the appellant costs of the appeal with interest at court rates from the date of taxation. By agreement, the judgment also applies to Civil Appeal No. 198 of 2002 between the same parties.

Key legal issues

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01

Whether an appeal lies from a taxing master's decision on an advocate/client bill of costs

Holding

No appeal lies; the Remuneration Order provides only for references to a judge in chambers under Rule 11, save for appeals to the Court of Appeal with leave under Rule 11(3).

Reasoning

The appellate jurisdiction of a court is a creature of statute. The Advocates Remuneration Order is a complete code that deliberately omits appeals or reviews. The Rules Committee intended a simple, expeditious procedure through references to a judge in chambers; terms such as appeal or review should not be loosely applied to it.

p. 2
02

Whether the Respondents' reference under Rule 11 was competent

Holding

The reference was incompetent because the notice of objection did not specify the items of taxation objected to as required by Rule 11(1).

Reasoning

Rule 11(1) requires an objector to give notice of the specific items objected to so the taxing officer can give reasons on them. A vague notice would defeat the expeditious purpose of the reference procedure and could force the taxing officer to give reasons on items not objected to. The 1st August 2001 notice was fatally defective, and the timing of receipt of the taxing master's decision was immaterial.

p. 3
03

Whether taxation of an advocate/client bill of costs after a change of advocates is premature under Paragraph 62A(1)

Holding

Taxation was not premature; Paragraph 62A(1) governs party and party costs only, and a discharged advocate may have his bill taxed immediately.

Reasoning

Costs are normally awarded only at determination of a matter, so Paragraph 62A(1)'s requirement of a single bill by the advocate finally on record refers to party and party costs. Its objective is to shield litigants from costs arising from an adverse party's change of advocates. A terminated advocate is entitled to immediate payment and taxation without waiting for the conclusion of the suit.

p. 3

Legal principles established

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  • The Advocates Remuneration Order is a complete code which does not provide for appeals from a taxing master's decisions; grievances are ventilated by reference to a judge in chambers under Rule 11, and appeals to the Court of Appeal lie only with leave under Rule 11(3).
  • A notice of objection under Rule 11(1) must specify the items of taxation objected to; a vague notice that does not specify items and seek reasons for their taxation is fatally defective and renders any ensuing reference incompetent.
  • Paragraph 62A(1) of the Advocates Remuneration Order applies only to party and party bills of costs, not to advocate/client bills.
  • An advocate whose instructions are terminated is entitled to immediate taxation of his bill of costs and need not wait until the underlying suit is concluded.

Court orders

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  1. 1.Appeal allowed
  2. 2.Ruling of the High Court dated 7th February 2002 set aside and substituted with an order dismissing the Respondents' reference with costs
  3. 3.Order of the taxing master dated 20th July 2001 taxing the Appellant's bill of costs at Kshs.4,500,000/= restored
  4. 4.Appellant to have the costs of this appeal with interest thereon at court rates from the date of taxation
  5. 5.Judgment to apply equally to Civil Appeal No. 198 of 2002 between the same parties

Authorities

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Legislation

  • Advocates ActSections 44 and 51
  • Advocates Remuneration OrderRule 11(1), (2), (3) and (4)
  • Advocates Remuneration OrderRule 13(1)
  • Advocates Remuneration OrderParagraph 62A(1)
  • Civil Procedure ActSection 80

Cases cited (1)

  • Machira & Co. Advocates vs Arthur Magugu & Another
    HCC Misc. App. No. 358 of 2001
On appeal from
High Court of Kenya at Nairobi
HCC Misc Application No. 151 of 2001
Jurisdiction invoked
First appeal from the High Court under Rule 11(3) of the Advocates Remuneration Order, which permits appeal to the Court of Appeal with leave of the Judge

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Machira & Co. Advocates v Arthur K. Magugu & another [2012] KECA 245 (KLR)", Case Analysis (2012). Civil Appeal No. 199 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/245/eng@2012-03-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.