Ochieng’ Ogutu & Co Advocates v Philip Omondi Aming’o [2018] KEELC 1182 (KLR)
The bottom line
#The High Court cut a lawyer's fee bill slightly but refused to revisit fee items the client never challenged during taxation.
What this practically means
#Executive summary
#Key legal issues
#Interference with a taxing officer's exercise of discretion
The court may interfere only where the decision is based on an error of principle or the fee is manifestly excessive; the normal practice is to remit, unless the error cannot materially have affected the assessment.
The court adopted Ojwang J's articulation of the principles in Republic v Ministry of Agriculture; Ex-parte Muchiri W'Njuguna. Taxation is a matter of opinion based on experience, and relevant factors include the nature and importance of the matter, the value of the subject matter, and the conduct of proceedings. Here the ambiguity in Item 1 (two conflicting figures, Kshs 170,000 and 205,000) amounted to an error of principle, permitting interference.
Whether uncontested items of a bill of costs may be challenged on a reference
No - objections must be raised during taxation; items allowed as uncontested cannot be reopened on a reference.
The purpose of an itemised bill is to give the respondent opportunity to object to specific items before taxation. The client had only contested Item 1 before the taxing officer. Permitting challenges to uncontested items on a reference would produce endless taxation disputes and destroy finality. The court therefore rejected the challenge to Items 2-20, 23 and 24, leaving those items as taxed.
Applicable schedule and computation of instruction fees
Schedule 1 of the Advocates (Remuneration) (Amendment) Order 2014 applied to the sale and purchase of land; instruction fees were computed at 2% on the first Kshs 5,000,000 and 1.5% on the balance, totalling Kshs 152,500 before VAT, and the incomplete conveyance did not shift the matter to Schedule 5.
The transaction was a sale and purchase of land in Baraka Estate, Embakasi, with a purchase price of Kshs 8,500,000. The advocate argued instruction fees accrue upon receipt of instructions regardless of withdrawal before completion. The court computed 2% of 5,000,000 (Kshs 100,000) plus 1.5% of 3,500,000 (Kshs 52,500) and substituted that figure for the taxing officer's award.
Power to amend a bill of costs after lodging
The taxing officer acted lawfully in allowing the amendment, having power under Rule 71.
The client contended the amendments were effected without leave and contrary to natural justice, and that the taxing officer had invoked Article 159(d) of the Constitution. The court did not engage with the constitutional argument but held that Rule 81(71) empowers a taxing officer to allow amendments after lodging, so the officer acted within the law.
Legal principles established
#- A court will not interfere with a taxing officer's award unless it is based on an error of principle or is manifestly excessive or so low as to amount to an injustice.
- Objection to an item in a bill of costs must be raised during taxation; items not contested during taxation cannot be reopened on a reference.
- A taxing officer has power under Rule 71 to allow an amendment to a bill of costs after it has been lodged.
Court orders
#- 1.The client's challenge to Items 2 to 20, 23 and 24 of the bill of costs is rejected
- 2.The taxation in respect of Item 1 is set aside and substituted with a figure of Kshs 152,500
- 3.The total award relating to Item 1 after VAT at 16 percent is Kshs 185,475.20
- 4.The overall net award after reckoning the deposit of Kshs 50,000 already paid is reviewed to Kshs 135,379.20 (stated in one passage as Kshs 135,479.20), being the sum the client is liable to pay the advocate
- 5.Each party shall bear own costs of the reference
- On appeal from
- null
- null
- Jurisdiction invoked
- Reference against a taxing officer's decision under the Advocates (Remuneration) Order; the court did not cite a specific constitutional/statutory basis for its jurisdiction.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ochieng’ Ogutu & Co Advocates v Philip Omondi Aming’o [2018] KEELC 1182 (KLR)", Case Analysis (2018). Chamber Summonses dated 6/6/2016 (Reference from Taxing Officer's Ruling of 30/3/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1182/eng@2018-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.