Anthony Thuo Kanai T/A A. Thuo Kanai Advocates v John Ngigi Ng’ang’a [2014] KEELC 241 (KLR)
The bottom line
#Kenya's High Court confirmed advocates can bill under Schedule V even for non-contentious work, and set aside a taxation that used outdated rates.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of the reference under rule 11
The application was filed within time; time ran from 21st January 2014 when the taxing officer's note responding to the request for reasons was made, not from the 26th November 2013 ruling
Rule 11(2) requires the taxing officer to record and forward reasons, and gives the objector 14 days from receipt of those reasons to apply to a judge. The Applicant requested reasons by letter filed 9th December 2013; the taxing officer's notation dated 21st January 2014 stating reasons were in the file marked when the explanation was given. The application filed 3rd February 2014 was therefore within the 14-day window and competent.
Applicable Remuneration Order and Schedule
The applicable order was the Advocates (Remuneration) Order 2006 as amended in 2009; the taxing officer erred in principle by applying the unamended 2006 Schedule I rates instead of Schedule V of the 2009 Order
The sale agreement was dated 22nd January 2009 and the charge 29th March 2011, so the applicable law was the 2006 Order as amended by the 2009 Amendment Order (Legal Notice No. 50 of 2009), which replaced Schedules I and II. The taxing officer applied 2006 Schedule I rates, an error in principle. Further, since the Applicant had elected Schedule V under rule 22, and rule 18 makes non-contentious fees subject to rule 22, the election to Schedule V was lawful even in non-contentious matters.
Whether the taxing officer erred in principle on items 29 and 2-69
Yes; in treating Schedule V as applicable only to contested matters and disallowing items 2-69 on the basis that Schedule I fees are all-inclusive, the taxing officer misdirected himself
Schedule V provides two methods of assessment: agreed hourly rates under Part I and scale charges under Part II, under which specific items are allowable in addition to instruction fees. Because the taxing officer wrongly applied Schedule I (which is all-inclusive) rather than Schedule V, his disallowance of items 2-69 and lumping of item 29 with other items rested on the wrong legal footing, constituting an error in principle warranting interference.
Legal principles established
#- An advocate may elect to apply Schedule V to costs in non-contentious matters under rule 22 of the Advocates (Remuneration) Order
- A court will only interfere with a taxing officer's award when it is so high or so low as to amount to an injustice, or where the taxing master erred in principle
- Time for filing a reference under rule 11(2) runs from receipt of the reasons for the taxing officer's decision
Court orders
#- 1.The decision of the Taxing Master in the ruling delivered on 26th November 2013 as regards items 1, 29 and 2-69 of the Applicant's Advocates/Client Bill of Costs dated 8th March 2013 is set aside
- 2.The Bill of Costs is referred back to another taxing officer for fresh taxation according to the principles enunciated in the judgment
- 3.Each party to bear their own costs of the application
- Jurisdiction invoked
- Paragraph 11(1) & (2) of the Advocates (Remuneration) Order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anthony Thuo Kanai T/A A. Thuo Kanai Advocates v John Ngigi Ng’ang’a [2014] KEELC 241 (KLR)", Case Analysis (2014). Chamber Summons dated 3rd February 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/241/eng@2014-06-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.