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ELCAllowedMalindi HCCC No. 118 of 2009 (Reference)· [2013] KEELC 70 (KLR)

Leonard Katunga Mbuvi T/A Katunga Mbuvi & Company Advocates v Acrredo AG & 3 others [2013] KEELC 70 (KLR)

High Court of Kenya
27 September 2013
1,727 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court slashed a Kshs.20 million legal fee award, confirming advocates can only charge for the work they actually performed.

What this practically means

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Executive summary

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This was a reference under Rule 11(2) of the Advocates (Remuneration) Order challenging a taxing master's decision of 23rd July 2012 that taxed the Respondent advocate's Client-Advocate Bill of Costs at Kshs.17,900,720, including instruction fees of Kshs.20,000,000 for work done in Malindi HCCC No. 118 of 2009. The Applicants, former clients of the Respondent, complained that the Deputy Registrar erred in awarding full instruction fees to an advocate who neither filed the suit nor acted to its conclusion, having only filed and argued two applications before ceasing to act. The Respondent opposed, relying on the complexity of the suit and authorities including Adxcess Ltd v CCK and First American Bank of Kenya v Shah. Disposing of the reference by written submissions (the Respondent alone filing), the court reviewed the taxing master's reasons, noting he had fixed the minimum instruction fee at Kshs.3,500 yet awarded Kshs.20,000,000. Applying Mayers v Hamilton, Premchand Raichard v Quarry Services and First American Bank of Kenya v Shah, Angote J held that instruction fees grow with the work actually done; the firm that filed the plaint was entitled to the full instruction fees; and an award of Kshs.20,000,000 for two applications was so excessive as to betray an error of principle and injustice. The reference was allowed and the Bill of Costs remitted to another taxing master for re-assessment of item number 1.

Key legal issues

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01

Error of principle in taxation of instruction fees

Holding

An award of Kshs.20,000,000 for filing and arguing only two Applications, where the taxing master had set the minimum fee at Kshs.3,500, was manifestly excessive and based on an error of principle.

Reasoning

The taxing master found the minimum instruction fee was Kshs.3,500 but awarded Kshs.20,000,000. The court noted the advocate only filed and argued two applications, did not draw the plaint, ceased acting early, and made no reasonable progress in the suit. Considering the nature and importance of the cause, the interests of the parties, the general conduct of the proceedings, and the fact that full instruction fees would be payable to the firm that filed the suit, the award was so excessive as to demonstrate an error of principle and injustice to the applicants.

p. 4
02

Entitlement to instruction fees where the advocate did not conduct the suit to conclusion

Holding

The firm that files the plaint is entitled to the full instruction fees; an advocate who ceased acting after filing and arguing applications is entitled only to fees commensurate with the work actually done.

Reasoning

The Plaint in HCCC No. 118 of 2009 was filed by Gunga Mwinga & Co. Advocates, while the Respondent took over and filed two applications before ceasing to act. Since the taxing master should have considered only the work done by the Respondent (filing and arguing two applications), the minimum fee of Kshs.3,500 could not justifiably rise to Kshs.20,000,000. The taxing master was also required to account for the fact that the plaintiff would still pay full instruction fees to the firm that filed the suit.

p. 3
03

Discretion of the taxing master where the value of the subject matter is not pleaded

Holding

Where the value of the subject matter is not stated in the pleadings, the taxing master is entitled to use his discretion in assessing instruction fees, guided by the nature and importance of the cause, the interests of the parties and the general conduct of proceedings.

Reasoning

The court accepted that since the value of the subject matter was not stated in the pleadings, the taxing master properly exercised discretion. However, in exercising that discretion he was bound to take into account the nature and importance of the cause, the interests of the parties, the general conduct of the proceedings and all other relevant circumstances, including the limited scope of the instructions actually executed. Failure to do so rendered the exercise of discretion flawed.

p. 3

Legal principles established

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  • An advocate is entitled to claim the minimum instruction fees but cannot claim fees in respect of work he had not done; entitlement under instruction fees grows as the matter proceeds.
  • A court on a reference will interfere with a taxing master's award only when it is so high or so low as to amount to an injustice.
  • Complexity of a matter is not necessarily shown by research informing a pleading; such research may show unfamiliarity with basic legal principles and should not become an advantage against the adversary.

Court orders

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  1. 1.The Applicants' Chamber Summons application dated 31st July 2012 is allowed
  2. 2.The Respondent's Bill of Costs dated 13th December 2011 is remitted to another taxing master for re-assessment of item number 1

Authorities

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Legislation

  • Advocates (Remuneration) OrderRule 11(2)
  • Advocates (Remuneration) OrderSchedule VI (0) (VIII)

Cases cited (5)

  • ADXCESS LTD VS CCK
    (2005) e KLR
  • FIRST AMERICAN BANK OF KENYA VS SHAH AND 2 OTHERS
    (2002) I EA P 64
  • Mayers and Another Vs Hamilton & others
    (1975) EA 13
  • Premchand Raichard Limited & Another Vs Quarry Services of East Africa Limited & Others NO. 3
    (1972) EA 163
  • First American Bank of Kenya Vs Shan & Others, Nairobi HCCC No. 2255 of 2000
    (2002), 1 EA
On appeal from
Deputy Registrar (Taxing Master), High Court Malindi
Client-Advocate Bill of Costs dated 13th December 2011 in Malindi HCCC No. 118 of 2009
Jurisdiction invoked
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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Later judgments citing this (2)

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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, "Leonard Katunga Mbuvi T/A Katunga Mbuvi & Company Advocates v Acrredo AG & 3 others [2013] KEELC 70 (KLR)", Case Analysis (2013). Malindi HCCC No. 118 of 2009 (Reference). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/70/eng@2013-09-27

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