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ELCPartially AllowedChamber Summons dated 19th September 2017 (Advocate/Client taxation reference, Thika High Court)· [2018] KEELC 4074 (KLR)

Ngure Mbugua & Co Advocates v Joseph Mburu Muigai [2018] KEELC 4074 (KLR)

High Court of Kenya
16 March 2018
LGL. GACHERU
1,606 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Thika court gave a lawyer a second chance on his fee, but refused claims he couldn't prove with documents.

What this practically means

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Executive summary

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The Applicant Advocate filed a Chamber Summons dated 19th September 2017 under Paragraph 11(2) of the Advocates Remuneration Order L.N. 35 of 2014, seeking to set aside a taxation by the Deputy Registrar which reduced his Advocate/Client Bill of Costs (claimed at Kshs.1,278,668/=) to Kshs.89,230/= inclusive of VAT. The bill arose from instructions in the sale and purchase of land known as No. Ruiru/Ruiru East Block 7/102, in which his firm acted for both parties. The Advocate contended that the sale agreement disclosed a purchase price of Kshs.25,000,000/=, entitling him to instruction fees of Kshs.500,000/=, and that the Respondent did not contest the bill. The Respondent filed no response and did not attend court. Justice L. Gacheru found that the sale agreement before the taxing master lacked Page 2 and did not disclose the purchase price, justifying the minimum scale fee on Item No.2, but that this constituted an error of principle since the complete agreement showed the purchase price. Relying on Trade Bank Ltd v L2 Engineering and Wonga & Co. Advocates v Busia Sugar Co. Ltd, the Court set aside the taxed amount on Item No.2 and remitted it to the Deputy Registrar for fresh taxation using the complete agreement. The claim on Item No.3 (statutory charges) failed because Clause 8.2 of the agreement placed those charges on the purchaser and no evidence of payment by the firm was annexed. The application succeeded partially. Dated, signed and delivered at Thika on 16th March 2018 in the absence of both parties.

Key legal issues

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01

Whether the taxing officer erred in principle in taxing Item No.2 at the minimum scale fee

Holding

Yes - the taxing officer taxed Item No.2 on an incomplete sale agreement (missing Page 2) that did not disclose the purchase price, which was an error of principle warranting interference and remission for fresh taxation.

Reasoning

The Court compared the two sale agreements on record. The version annexed to the Bill of Costs lacked Page 2, so the purchase price was not disclosed, and the taxing master rightly used the minimum scale. However, the agreement attached to the Chamber Summons showed a purchase price of Kshs.25,000,000/= in Clause 3.1. Since the value of the subject matter must guide assessment of instruction fees, the absence of that value from the document considered constituted an error of principle, and the taxed amount in Item No.2 was set aside and remitted.

p. 2
02

Whether the taxing officer erred in taxing off Item No.3 of the Bill of Costs

Holding

No - the taxing officer correctly applied Clause 8.2 of the Sale Agreement, which placed the transfer charges on the purchaser, and the Advocate produced no evidence of payment on the client's behalf.

Reasoning

The taxing officer found that Clause 8.2 of the Sale Agreement required the purchaser to bear the charges relating to the transfer. The Advocate asserted that his firm paid those charges to enable the title to be processed, but annexed no evidence to support that allegation. Absent proof, the Court declined to fault the taxing master's decision on Items No.3 and No.4, and that part of the application failed.

p. 2

Legal principles established

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  • The taxing officer has a complete discretion which must be exercised judicially and upon correct principles; a court can interfere with taxation only where there is an error of principle or the taxing officer considered irrelevant matters.
  • The taxing master must be guided by the value of the subject matter in assessing instruction fees and must determine that value from the pleadings, judgments or settlement between the parties.
  • The High Court can interfere with a taxing officer's decision only where an error of principle is shown or the award is manifestly excessive or inordinately low.

Court orders

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  1. 1.The taxed amount in Item No.2 of the Advocate/Client Bill of Costs is set aside
  2. 2.The matter is remitted to the Deputy Registrar (taxing master) for fresh taxation of Item No.2 using the sale agreement attached to the application, which contains Page 2 with the purchase price indicated
  3. 3.The application succeeds partially and only Item No.2 is to be considered in the fresh taxation

Authorities

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Legislation

  • Advocates Remuneration OrderParagraph 11(2)
  • Advocates Remuneration Order L.N. 35 of 2014Schedule 1(1)

Cases cited (2)

  • Trade Bank Ltd (in liquidation) v L2 Engineering Constructions Ltd & Another
    Civil Appl. No.117 of 2000
  • Wonga & Co. Advocates v Busia Sugar Co. Ltd
    Busia HCC Misc.Appl No.118 of 2007
Jurisdiction invoked
Paragraph 11(2) of the Advocates Remuneration Order L.N. 35 of 2014

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, "Ngure Mbugua & Co Advocates v Joseph Mburu Muigai [2018] KEELC 4074 (KLR)", Case Analysis (2018). Chamber Summons dated 19th September 2017 (Advocate/Client taxation reference, Thika High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4074/eng@2018-03-16

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