Kimani Richu & Associates Advocates v Centurion Holdings Limited [2018] KEELC 3071 (KLR)
The bottom line
#Kenya's High Court confirmed that instruction fees must be based on the full value of the subject matter pleaded, not just one alternative claim.
What this practically means
#Executive summary
#Key legal issues
#Whether the taxing officer applied the correct principles in assessing instruction fees
She did not; she assessed fees based only on the alternative liquidated prayer (Ksh 17,000,000 refund) and ignored the pleaded value of the subject matter (Ksh 85,000,000) and the other prayers in the plaint.
The plaint expressly pleaded a purchase price of Ksh 85,000,000 for the two suit properties and sought specific performance, general damages, disclosure and the alternative refund. Under the Joreth Ltd principle, the value of the subject matter is ascertainable from the pleadings. By picking only the alternative liquidated relief, the taxing officer proceeded on wrong principles by omitting relevant factors.
Whether Ksh 440,000 as instruction fees was manifestly and/or grossly low as to amount to an injustice
Yes; had the value of Ksh 85,000,000 been used, the instruction fee would have been much higher, and the Ksh 440,000 awarded would cause gross injustice if left undisturbed.
Applying the ex-parte Muchiri W'Njuguna standard, the court found the award inordinately low because it rested on an error of principle — the omission of the pleaded subject-matter value. The fee based on Ksh 85,000,000 would have exceeded Ksh 440,000, establishing injustice warranting interference.
Legal principles established
#- The value of the subject matter for taxation of instruction fees is determined from the pleadings, judgment or settlement, and if not ascertainable the taxing officer may use discretion considering the nature and importance of the matter, interests of the parties, conduct of proceedings and other relevant circumstances.
- A court interferes with a taxing officer's decision only where it is based on an error of principle or the fee awarded is so excessive or low as to amount to an injustice; it is an error of principle to take into account irrelevant factors or omit relevant ones.
Court orders
#- 1.The Advocate's reference by way of chamber summons dated 13/3/2017 is allowed in terms of Prayers 1 and 2, setting aside the taxing officer's decision of 7/2/2017 on the taxation of Item Number 1 of the bill of costs
- 2.Each party shall bear their own costs of the application
- 3.The File shall be remitted back to the taxing officer to reconsider Item 1 of the bill of costs
- Jurisdiction invoked
- Reference under paragraph 11 of the Advocates (Remuneration) Order against a taxing officer's decision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimani Richu & Associates Advocates v Centurion Holdings Limited [2018] KEELC 3071 (KLR)", Case Analysis (2018). Chamber Summons dated 13/3/2017 (Reference against taxing officer's decision of 7/2/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3071/eng@2018-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.