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ELCDismissedNotice of Motion dated 12th November 2012 (Ruling under Rule 11(4) of the Advocates Remuneration Order)· [2015] KEELC 487 (KLR)

Kariuki Njuguna & 17 Others v Ngatho Kairu & 2 Others [2015] KEELC 487 (KLR)

High Court of Kenya
27 March 2015
JMJ. M. Mutungi
1,780 words in judgment
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The bottom line

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Kenya's High Court refused to overturn a taxing master's fee award, confirming courts will not interfere unless there's an error of principle or clear injustice.

What this practically means

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Executive summary

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This ruling determines a Notice of Motion dated 12th November 2012 brought by the Defendants under Rule 11(4) of the Advocates Remuneration Order, seeking setting aside of a taxation order and retaxation of a Bill of Costs. The Defendants contended that the taxing master committed an error of principle by basing instruction fees on the value of the entire 100-acre suit property (Kshs 100 million per a Lloyd Masika valuation) when the Plaintiffs had only sought a declaration that they held the property as tenants in common in equal shares with the Defendants, with no monetary award; they argued the value ought to have been assessed as at the date of instructions (1983) and confined to the Plaintiffs' approximate 6 percent interest. The Plaintiffs submitted that the taxing officer's discretion is wide and that value is to be determined from pleadings, judgment or settlement, failing which discretion applies, and that the court should not interfere absent an error of principle or manifest injustice. The court framed the sole issue as whether the taxing master erred in principle in assessing instruction fees. Applying Joreth Ltd v Kigano, Premchand Raichand, First American Bank of Kenya and Ouma v Warega, the court held that the taxing master properly exercised his discretion in taking the value of the subject matter into account, that the award was neither too high nor too low as to be unjust, and that interference on quantum alone is impermissible. The application was dismissed with costs to the Plaintiffs, and the taxed costs were ordered payable with interest from the date of taxation.

Key legal issues

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01

Whether the taxing master erred in principle by adopting the value of Kshs 100 million (the value of the entire suit property) as the basis for assessing instruction fees

Holding

No error of principle; the taxing master properly exercised his discretion, relying on a valuation report of the suit property, and the award was neither excessive nor unjust

Reasoning

The court held that where value cannot be determined from pleadings or judgment, the taxing officer may use his discretion per Joreth Ltd v Kigano. The taxing master was guided by a Lloyd Masika valuation placing the property at Kshs 100m. Interference is warranted only on error of principle or manifest injustice, per Premchand Raichand and Ouma v Warega. The fees assessed were not too high or too low, and the taxing master gave cogent reasons for not enhancing them.

p. 3

Legal principles established

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  • A court will not interfere with a taxing officer's award unless it is based on an error of principle or the sums are so manifestly high or low as to amount to an injustice
  • Where the value of the subject matter cannot be discerned from the pleadings, judgment or settlement, the taxing officer may exercise discretion to assess instruction fee taking into account all relevant circumstances

Court orders

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  1. 1.The application dated 12th November 2012 is dismissed as without merit
  2. 2.The Defendants shall bear the costs of this application
  3. 3.The taxed costs shall be paid together with interest from the date of taxation

Authorities

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Legislation

  • Advocates Remuneration OrderRule 11(4); Schedule VI

Cases cited (7)

  • Sammy Some Kosgei vs. Grace Jelel Boit
    E&L No. 411B of 2014
  • Joreth Limited vs. Kigano and Associates
    (2002) 1 EA 92; Nairobi CA No. 66 of 1999
  • Premchand Raichand Limited & another vs. Quarry Services of East Africa Limited and another
    (1972) E.A 162
  • Ouma vs. Warega
    (1982) KLR 288
  • Nyangito & Company Advocates vs. Doinyo Lessos Creameries
    Misc. Cause No. 843 of 2013
  • JP Machira T/A Machira & Company Advocates vs. MDC Holdings Ltd & others
    HCCC No. 1549 of 2001
  • First American Bank of Kenya vs Shah and others
    (2002) EA 64
Jurisdiction invoked
Rule 11(4) 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, "Kariuki Njuguna & 17 Others v Ngatho Kairu & 2 Others [2015] KEELC 487 (KLR)", Case Analysis (2015). Notice of Motion dated 12th November 2012 (Ruling under Rule 11(4) of the Advocates Remuneration Order). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/487/eng@2015-03-27

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