Muriu, Mungai & Co. Avocates v New Kenya Co-operative Creameries Limited [2019] KECA 1011 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a law firm's fees must follow their written agreement, rejecting the firm's attempt to charge more based on property valuations.
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 supplementary record of appeal containing additional evidence should be expunged
- 2.Whether the Judge erred in striking out the entire Bill of Costs when the notice of objection referred only to items 1, 2 and 3
- 3.Whether the taxing officer erred in principle by basing instruction fees on a valuation report rather than the fee agreement governing a block exercise of transfers
Key legal issues
#Scope of the objection to the taxing officer's decision
The objection extended to the entire Bill of Costs notwithstanding that the notice of objection mentioned only items 1, 2 and 3
The court reviewed the record and found that the chamber summons dated 9th April 2009 complained of the taxation of the entire bill and, in the alternative, items 1, 2 and 3. The grounds asserted the entire bill was legally untenable, and the submissions before the Judge attacked the whole bill. The complaint by the advocates therefore had no merit.
Error of principle justifying interference with taxation
The taxing officer erred in principle by failing to appreciate that the instructions entailed a block exercise of transferring assets, so the Judge was entitled to set aside the taxation
The Judge's conclusion was supported by the material before her, including the advocates' own letter of 17th February 2005 accepting a global fee of Kshs. 11 million for the transfers of the properties. Reliance on a valuation report per property ignored the agreed block fee. Following Premchand Raichand and Joreth Limited, the court had no basis for interfering with the Judge's decision.
Additional evidence on appeal
Documents in the supplementary record not part of the record below, admitted without leave, were expunged and not referred to
Counsel for the client conceded the bulk of the documents were not part of the record in the lower court and that leave was neither sought nor obtained to adduce additional evidence. The court upheld the objection and made no reference to the documents.
Legal principles established
#- An appellate court may interfere with a taxing officer's decision only where it is shown that the officer erred in principle in assessing costs
- Where a notice of objection under Paragraph 11 is followed by a chamber summons attacking the entire bill and submissions to that effect were made, the objection is not limited to the items named in the notice
Court orders
#- 1.Upholding the objection to the supplementary record of appeal and making no reference to the documents therein
- 2.Dismissing the appeal with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi (Commercial & Tax Division, Milimani)
- Misc. Cause No. 699 of 2007
- Jurisdiction invoked
- Paragraph 11(3) of the Advocates (Remuneration) Order
Relief refused
#Admission of the documents in the supplementary record of appeal
They were not part of the record below and leave to adduce additional evidence was neither sought nor obtained
The advocates' complaint that the objection was limited to three items
The chamber summons and submissions before the Judge attacked the entire Bill of Costs
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.
This appeal is devoid of merit and is accordingly dismissed with costs to the respondent.
we consider that the Judge was entitled to interfere with the decision of the taxing officer on the basis of an error of principle
the submissions made before the Judge reflect that the client's objection to the decision of the taxing officer related to the entire Bill of Costs and not just to the three items.
We accordingly uphold the objection and make no reference to the documents in question.
Issues in the judgment
#The judgment's opening paragraph states the High Court decision was rendered on 26th March 2010, while the cause title describes the ruling as dated 26th March 2019; the body repeatedly refers to 26th March 2010, which is consistent with a 2007 cause and a 2010 appeal number
The judgment states the appeal is under Paragraph 11(3) of the Advocates (Remuneration) Order in the first paragraph, while the cause title and paragraph 1 reference a ruling dated 26th March 2019, which post-dates the delivery of this judgment on 8th February 2019
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muriu, Mungai & Co. Avocates v New Kenya Co-operative Creameries Limited [2019] KECA 1011 (KLR)", Case Analysis (2019). Civil Appeal No. 286 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/1011/eng@2019-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.