Muriu Mungai & Company Advocates v China Civil Engineering Construction Corporation (K) Ltd [2019] KECA 672 (KLR)
The bottom line
#The Court of Appeal confirmed that instruction fees are based only on what was actually in dispute, not a client's whole investment, and a general objection notice is valid.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Judge erred in admitting a blanket notice of objection to the entire decision of the taxing officer contrary to rule 11(1) of the Advocates Remuneration Order
- 2.Whether the Judge overlooked the principles of stare decisis and separation of powers by expanding the boundaries of rule 11(2), a matter said to be the preserve of the Rules Committee
- 3.Whether the Judge erred in finding that the value of the subject matter could not be hinged on the value of the respondent's entire project but only the disputed part of the land (the wayleave)
Key legal issues
#Validity of a blanket notice of objection under rule 11(1) of the Advocates Remuneration Order
The notice objecting to the entire decision was valid; the requirement to specify items is procedural, non-mandatory and its breach caused no prejudice.
The Court read the notice as a request for reasons on all 26 items in the bill. A party has a right to seek information on matters affecting it. The taxing officer had in any event given reasons for the taxed items and only a reference followed. Since rule 11(1) is not mandatory, the general notice was a procedural technicality unable to justify dismissal.
Whether the Judge violated stare decisis in departing from Machira & Co. Advocates v Arthur K. Magugu
No. Machira was distinguishable because there the objection was filed out of time; Kipkorir, Titoo & Kiara in fact supports substantial compliance with rule 11(2).
The Court restated the doctrine of stare decisis but held every case turns on its own facts; where facts are alike courts are bound by precedent. Machira dealt with an out-of-time objection, a different factual matrix, so the Judge's approach was a legitimate distinction, not legislative usurpation.
Value of the subject matter for purposes of instruction fees
The subject matter was the 12.3-metre wayleave, not the respondent's USD 80,000,000 investment; the taxing officer therefore erred in principle in valuing the instructions at Kshs 8 billion, and the Judge was right to set aside the taxation.
The suit was settled by consent within months and the pleadings showed the dispute concerned the wayleave area and possible trespass and damage to the pipeline, not the whole investment. Fees must be anchored on what was actually in dispute, not on hypothetical future damage.
Legal principles established
#- A notice of objection under rule 11(1) of the Advocates Remuneration Order need not specify individual items; the requirement is procedural and non-mandatory, and a blanket objection does not warrant dismissal.
- For instruction fees, the value of the subject matter is what was actually in dispute in the suit, not the party's entire investment; fees for work done cannot take into account possible future damage.
- A Judge on a reference will not interfere with a taxing officer's discretion except where the taxing officer erred in principle; questions solely of quantum are for the taxing officer.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Misc. Civil Application No. 68 of 2016
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over decisions of the High Court in civil matters (Advocates Act - taxation/reference proceedings)
Relief refused
#Appellants' prayer to have the blanket notice of objection under rule 11(1) declared invalid
Rule 11(1) is not couched in mandatory terms and the general notice passed for a procedural technicality; no prejudice was shown
Appellants' claim that instruction fees should be assessed on the value of the respondent's entire investment
The dispute concerned only the 12.3-metre wayleave, not the entire investment; fees cannot take into account future possibilities of damage
Costs
Appeal dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly we find no merit in this appeal which we order dismissed with costs to the respondent.
Moreover the provision of rule 11 (1) is not couched in mandatory terms, in our considered view the issue on the general notice that sought for all the 26 reasons would pass for a procedural technicality that would not warrant the entire dismissal of the notice.
fees for work done cannot take into account future possibilities of the damage that was likely to occur or not occur.
where there has been an error in principle the court will interfere; but questions solely of quantum are regarded as matters with which the taxing officers are particularly fitted to deal and the court will interfere only in exceptional cases
Issues in the judgment
#The judgment inconsistently refers to the value of the respondent's investment, at one point in US dollars and elsewhere as Kshs 8 billion, without reconciliation.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Autoports Freight Terminals Limited v Kenya Ports Authority (Civil Appeal (Application) 76 of 2018) [2025] KECA 1297 (KLR)[2025] KECA 1297 (KLR)18 Jul 2025applied
Cite this brief
#Cite this brief
Caselaw, "Muriu Mungai & Company Advocates v China Civil Engineering Construction Corporation (K) Ltd [2019] KECA 672 (KLR)", Case Analysis (2019). Civil Appeal No 78 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/672/eng@2019-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.