Nzaku & Nzaku Advocates v Chimako Homes Limited [2016] KEELC 1283 (KLR)

Under Rule 11 of the Advocates (Remuneration) Order, an objector gives notice within fourteen days and the taxing officer must furnish reasons, after which a reference may be filed within fourteen days of receipt. The applicant filed its objection and requested the registrar's decision on 13th February 2015 but never followed up. The taxing master had not written her reasons. Following Kipkorir, Titoo & Kiara, the court held failure to furnish reasons is a good ground for reference but the applicant had to show it requested them.

An affidavit of service sworn by Peter Mwangi Njoroge on 2nd February 2015 showed service at the applicant's offices at Group Four Security Offices, Mombasa Road. The advocate had previously acted for the applicant and thus knew its offices; the applicant did not dispute the location stated by the process server, rendering its claim of non-service untrue.

Applying Schedule VI clause (1) of the Advocates Remuneration Order, the taxing officer was to consider the nature and importance of the matter, the amount involved, the parties' interests and the general conduct of proceedings. The court found the taxing officer considered the value of the subject matter (a sale of L.R. No. 67255/225 for Kshs. 187,000,000/=), the complexity of the matter and the duty and care in arriving at the figure awarded. Absent an exhibited fee agreement, the advocate was entitled to tax under Rule 18.

Section 51(2) provides that the certificate of the taxing officer is final as to the amount of costs unless set aside or altered, and the court may order judgment to be entered for the sum certified where the retainer is not disputed. Since the first application attacking the taxation failed and the second application was unopposed, the certificate of Kshs. 2,788,080/- was adopted as judgment with liberty to execute.