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Court of AppealPartially AllowedCourt of Appeal Appeal against High Court Miscellaneous Civil Application No. 144 of 2016 (appeal number not stated in judgment)· [2021] KECA 90 (KLR)

Maina & another v JM Njenga & Company Advocates & 2 others (Civil Appeal 345 of 2019) [2021] KECA 90 (KLR)

Court of Appeal of Kenya
22 October 2021
3,923 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal overturned a Kshs.48 million legal fees award because it was calculated using a pleading that was never validly on record.

What this practically means

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Executive summary

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This is a first appeal to the Court of Appeal (Warsame, Omondi and Lesiit, JJ.A) against the High Court ruling of 29th April, 2019 (Nzioka, J) dismissing the appellants' chamber summons application challenging the taxing master's decision on an advocate/client bill of costs and entering judgment for the advocate for Kshs.48,981,771.65/=. The core complaint was that the taxing master valued the subject matter using the further amended plaint dated 20th November, 2012 claiming special damages of Kshs.1,011,543,539/=, yet in the parent suit HCCC 394 of 2011 Ngenye, J later found there was no order granting leave to file that plaint; leave was only granted by consent on 9th June, 2021. The Court agreed that the taxing master used a pleading not properly on record, amounting to an error of principle that produced manifestly excessive instruction and getting up fees. The Court also held that the learned Judge erred in failing to deduct the Kshs.7,000,000/= paid to the advocate under the consent order of 28th July, 2016 as part of the taxed costs, an omission affecting the principal sum and interest. Applying the settled principle that courts interfere with taxing officers' decisions only on errors of principle and not on questions of quantum, the Court allowed the appeal, set aside the ruling of 29th April, 2019, remitted the taxation file to another judge for a proper determination, and awarded the appellants the costs of both the appeal and the High Court. The judgment binds subordinate courts on the test for interference with a taxing master's decision.

Key legal issues

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01

Whether the taxing master erred in principle by using the further amended plaint dated 20th November, 2012 to value the subject matter

Holding

Yes. Leave to file the further amended plaint was only granted on 9th June, 2021; the correct pleading was the amended plaint dated 28th May, 2012 claiming special damages of Kshs.620,000,000/=. Reliance on the invalid pleading was an error of principle leading to manifestly excessive instruction and getting up fees.

Reasoning

The Court found it undisputed that the taxing officer used the further amended plaint claiming special damages of Kshs.1,011,543,539/= to value the subject matter. However, in the parent suit HCCC 394 of 2011, Ngenye, J had held on 7th June, 2021 that there was no order granting leave to file that further amended plaint; leave was only granted by consent on 9th June, 2021. The taxing master therefore used a pleading that was not properly on record, which in turn inflated the instruction fees and the getting up fees calculated on them. This constituted an error of principle warranting interference by the Court.

p. 7
02

Whether the failure to deduct the Kshs.7,000,000/= paid pursuant to the consent order of 28th July, 2016 and to provide for the Kshs.8,751,600/= was an error of principle

Holding

Yes. The sums paid to the advocate as part of the taxed costs ought to have been deducted from the judgment sum, as they affect the principal sum payable and the interest.

Reasoning

The consent order of 28th July, 2016 required Messrs Lloyd Masika Limited to pay the advocate's firm Kshs.7,000,000/= as part of the taxed costs held as security. That amount was not deducted from the sum entered in judgment on 29th April, 2019, and the decree allowed Kshs.48,981,888.65/= while merely providing that Kshs.8,751,600/= be provided for. The Court held that the failure to deduct the amount affected the principal sum and interest, and justified interfering with the quantum of the certificate of taxation to avoid double payment or unjust enrichment.

p. 7
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The standard for interfering with a taxing master's decision on appeal

Holding

The Court will interfere where there is an error in principle, but questions solely of quantum attract interference only in exceptional cases.

Reasoning

The Court adopted the settled position from Peter Muthoka & Another v Ochieng, Onyango, Kibet & Ohaga Advocates, itself drawing on Arthur v Nyeri Electricity, that questions solely of quantum are matters with which taxing officers are particularly fitted to deal, and courts interfere only in exceptional cases. Here, however, the appellants demonstrated more than a quantum complaint: the taxing master relied on a pleading not properly on record and omitted to deduct payments made, both of which amounted to errors of principle.

p. 6

Legal principles established

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  • A taxing master's decision may be interfered with only where there is an error of principle; questions solely of quantum are interfered with only in exceptional cases.
  • Reliance on a pleading not properly on record to determine the value of the subject matter is an error of principle that vitiates the award of instruction fees and getting up fees.
  • On a first appeal, the Court's primary duty is to re-evaluate the evidence and come to its own independent conclusion.
  • Payments made to an advocate as part of taxed costs under a consent order must be deducted from the judgment sum on the certificate of taxation; failure to do so is an error of principle.

Court orders

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  1. 1.Appeal allowed and the ruling of the High Court dated 29th April, 2019 set aside
  2. 2.Taxation file placed before another judge to make a proper determination taking into consideration all the factors enumerated in the judgment
  3. 3.Appellants granted the costs of this appeal and of the High Court
On appeal from
High Court of Kenya at Nairobi
Miscellaneous Civil Application No. 144 of 2016
Jurisdiction invoked
First appeal to the Court of Appeal under Rule 29(1)(a) of the Court of Appeal Rules, from a decision of the High Court on a reference under Rule 11(2) of the Advocates (Remuneration) Order

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Maina & another v JM Njenga & Company Advocates & 2 others (Civil Appeal 345 of 2019) [2021] KECA 90 (KLR)", Case Analysis (2021). Court of Appeal Appeal against High Court Miscellaneous Civil Application No. 144 of 2016 (appeal number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/90/eng@2021-10-22

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