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ELCDismissedNot stated in the judgment· [2017] KEELC 2115 (KLR)

John Michael Wanjao v George Kimetto & 2 others [2017] KEELC 2115 (KLR)

High Court of Kenya
25 July 2017
MOM.A. Odeny
1,151 words in judgment
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The bottom line

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The High Court in Eldoret upheld a taxing officer's decision on legal fees, confirming courts rarely disturb taxation unless it was clearly wrong in principle.

What this practically means

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Executive summary

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This ruling by M.A. Odeny, J at the High Court, Eldoret, determined a reference arising from a Bill of Costs, brought by Chamber Summons dated 10th April 2017 under Sections 48 and 51 of the Advocates Act and rule 11 of the Advocates (Remuneration) Order. The plaintiff applicant challenged two items taxed in favour of the respondent advocate: the instruction fees, taxed at Kshs. 100,000 (down from the claimed Kshs. 150,000, against a Schedule 6(1)(b) minimum of Kshs. 49,000), and the getting up fees. Counsel for the applicant, Mr. Marube, argued that the Deputy Registrar failed to give sufficient reasons for the Kshs. 100,000 award, that the matter was not shown to be complex, and that getting up fees were not payable since the matter was never prepared for trial - no order 11 pre-trial compliance having occurred. Counsel for the respondent, Mr. Momanyi, countered that taxation is discretionary and no misdirection was shown; the value discernible from the plaint (Kshs. 260,000) justified the Schedule 6(1)(a) scale, and the getting up fee was tenable given the defence denying liability on grounds including section 3(3) of the Law of Contract Act. Applying Joreth Ltd v Kigano & Associates (2002) 1EA 92, the court held the taxing officer had adhered to the prescribed guidelines and exercised her discretion judiciously, found no error of principle, held the amounts reasonable and not excessive, and found the respondent entitled to getting up fees for work on the striking-out application. The application was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the Taxing Officer exercised judicial discretion judiciously in awarding instruction fees of Kshs. 100,000

Holding

The court found the Deputy Registrar adhered to the Joreth guidelines and committed no error of principle; the reduction from Kshs. 150,000 to Kshs. 100,000 was within her discretion.

Reasoning

The court applied the Joreth Ltd v Kigano & Associates guidelines: care and labour, number and length of papers perused, nature and importance of the matter, value of the subject matter, interest of the parties and novelty of the matter. Having perused the reasons delivered on 30th April 2017, the court found the taxing officer had adhered to these guidelines, and that she could use her discretion to reduce or increase fees as allowed by law.

p. 3
02

Whether getting up fees was payable

Holding

Getting up fees was payable because the respondent filed the application to strike out the suit, filed written submissions with authorities, and attended court for the hearing of the application.

Reasoning

Although the applicant argued that order 11 pre-trial procedures were not complied with and thus no trial preparation occurred, the court agreed with the taxing master. The respondent's advocacy work on the striking-out application - filing submissions, authorities and attending the hearing - justified the getting up fee.

p. 3

Legal principles established

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  • A Taxing Master in assessing costs in an advocate-client bill of costs exercises judicial discretion, which may only be interfered with where it is established that it was exercised capriciously and in abuse of the correct principles of law

Court orders

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  1. 1.The application dated 10th April 2017 is dismissed
  2. 2.The award by the Taxing Master is upheld
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Advocates ActSections 48 and 51
  • Advocates (Remuneration) OrderRule 11; Schedule 6(1)(a) and (b)
  • Civil Procedure RulesOrder 11
  • Law of Contract ActSection 3(3)

Cases cited (1)

  • Joreth Ltd vs. Kigano & Associates
    (2002) 1EA 92
Jurisdiction invoked
Sections 48 and 51 of the Advocates Act and rule 11 of the Advocates (Remuneration) Order (reference against a taxing officer's decision)

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, "John Michael Wanjao v George Kimetto & 2 others [2017] KEELC 2115 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2115/eng@2017-07-25

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