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ELCPartially AllowedChamber Summons dated 3rd February 2014 (Misc. Application)· [2014] KEELC 341 (KLR)

Anthony Thuo Kanai T/A A. Thuo Kanai Advocates v John Ngigi Ng’ang’a [2014] KEELC 341 (KLR)

High Court of Kenya
25 June 2014
3,326 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 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

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Executive summary

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This was a reference by an advocate under paragraph 11 of the Advocates (Remuneration) Order against a Taxing Officer's ruling of 26th November 2013 on the advocate/client Bill of Costs dated 8th March 2013, arising from the advocate's representation of the respondent in the purchase and transfer of Maisonette No. H17 Platinum Estate on L.R No. 209/15590, Nairobi. The applicant sought variation or setting aside of the ruling on items 1 and 2 to 42 and an increase of fees under Schedule V Part II of the 2009 Order. The respondent opposed, contending the reference was filed out of time, that no error of principle was shown, and that items 2 to 42 were properly taxed off as subsumed in the instruction fee. Nyamweya J framed three issues: timeliness, the applicable Order and Schedule, and whether the taxing officer erred in principle. The court held the reference was filed within time, time running from the taxing officer's note of 21st January 2014 giving his explanation of reasons. On the applicable law, the court found the taxing officer erred in principle by applying the 2006 Order and Schedule I, since the 2009 Amendment Order applied and rule 18 subjects non-contentious remuneration to the rule 22 election, so the advocate's election of Schedule V was lawful even for non-contentious conveyancing. Applying the Premchand Raichand and Joreth principles, the court set aside the ruling on items 1 and 2 to 42 and referred the Bill of Costs back to another taxing officer for fresh taxation, with each party bearing their own costs.

Key legal issues

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01

Timeliness of the reference under rule 11

Holding

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

Reasoning

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.

p. 4
02

Applicable Remuneration Order and Schedule

Holding

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

Reasoning

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.

p. 5
03

Taxation of items 1 and 2 to 42 of the Bill of Costs

Holding

The taxation of these items was vitiated by the errors of principle and was set aside, with the Bill referred back for fresh taxation

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 2.The Bill of Costs is referred back to another taxing officer for fresh taxation according to the principles enunciated in the judgment
  3. 3.Each party shall bear their own costs of the application

Authorities

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Legislation

  • Advocates (Remuneration) OrderParagraph 11(1) & (2)
  • Advocates (Remuneration) Order 2006Schedule I
  • Advocates (Remuneration) (Amendment) Order 2009 (Legal Notice No. 50 of 2009)Schedules I and II replaced
  • Advocates (Remuneration) Order 2009Schedule V Parts I and II; rules 18, 22, 20(1), 50, 51, 51A, 51B, 51C

Cases cited (9)

  • Muthoga Gaturu & Co Advocates vs Corporate Insurance Company Limited
    Nairobi High Court Misc. Application 433 of 2000
  • First American Bank of Kenya vs Shah and Others
    (2002) E.A.L.R. 64
  • First American Bank of Kenya Ltd v Gulab P Shah & Others
    [2002] 1 E.A. 61
  • Republic vs Minister of Agriculture & 2 Others ex parte Samuel Muchiri W' Njuguna & 6 Others
    (2006) e KLR
  • Lubuleliah & Associates vs NK Brothers Ltd
    (2014) e KLR
  • Premchand Raichand Ltd & Another vs Quarry Services of East Africa Limited & Another
    (1972) E.A. 162
  • Joreth Ltd vs Kigano & Associates
    (2002) E.A 88 (CAK)
  • Premchand Raichand Ltd v Quarry Services of East Africa Ltd (No. 3)
    [1972] EA 162
  • Joreth Limited v Kigano & Another
    [2002] E.A. 92
Jurisdiction invoked
Paragraph 11(1) & (2) of the Advocates (Remuneration) Order - reference against a Taxing Officer's ruling

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, "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.