Anthony Thuo Kanai T/A A. Thuo Kanai Advocates v John Ngigi Ng’ang’a [2014] KEELC 341 (KLR)
The bottom line
#Kenya's High Court confirmed advocates can choose Schedule V fees even for non-contentious conveyancing, and ruled the tax deadline runs from receiving reasons.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of the reference under rule 11
The reference filed on 3rd February 2014 was within time, time running from 21st January 2014 when the taxing officer gave his explanation of reasons
Rule 11(2) requires the taxing officer to record and forward reasons; the 14-day period for filing the reference runs from receipt of those reasons. The taxing officer's note dated 21st January 2014 stating that reasons were in the file and the advocate should file a reference constituted the explanation of reasons, so the reference filed 13 days later was competent.
Applicable Remuneration Order and Schedule
The Taxing Officer erred in principle by applying the 2006 Order and Schedule I instead of the Advocates (Remuneration) Order 2009 and Schedule V, under which the Advocate had validly elected to proceed
The transaction dated 2nd November 2010 was governed by the 2006 Order as amended in 2009 (LN 50 of 2009), which replaced Schedules I and II. Rule 18 makes non-contentious remuneration subject to rule 22 election, so an advocate may elect Schedule V even in non-contentious conveyancing. The taxing officer's view that Schedule V applies only to contested matters was therefore an error of principle.
Taxation of items 1 and 2 to 42 of the Bill of Costs
The taxation of these items was vitiated by the errors of principle and was set aside, with the Bill referred back for fresh taxation
Having found errors of principle in the applicable Order and Schedule, and noting that Schedule V Part II allows specific items in addition to instruction fees while requiring allowance for other charges, the court set aside the ruling on items 1 and 2 to 42 and remitted the Bill to another taxing officer for fresh taxation applying the enunciated principles.
Legal principles established
#- An advocate may elect to apply Schedule V of the Advocates (Remuneration) Order to costs in non-contentious matters, such election being subject to rule 22
- A court will only interfere with a taxing officer's award where it is so high or so low as to amount to an injustice, i.e. where there is an error of principle
- Time for filing a reference under rule 11(2) runs from receipt of the taxing officer's reasons, not merely from the date of the ruling
Court orders
#- 1.The decision of the Taxing Master in the ruling delivered on 26th November 2013 as regards items No. 1 and 2 to 42 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 shall bear their own costs of the application
- Jurisdiction invoked
- Paragraph 11(1) & (2) of the Advocates (Remuneration) Order - reference against a Taxing Officer's ruling
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 341 (KLR)", Case Analysis (2014). Chamber Summons dated 3rd February 2014 (Misc. Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/341/eng@2014-06-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.