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ELCDismissedNot stated in judgment· [2019] KEELC 1501 (KLR)

Paul Otieno Mungla t/a Paul Mungla & Co. Advocates v George Ogalo Oner & another; Charity Achieng Opon (Objector) [2019] KEELC 1501 (KLR)

High Court of Kenya
25 September 2019
2,715 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The High Court declined to reverse a taxed advocate's fee bill and upheld the attachment of goods, since neither side proved errors or ownership.

What this practically means

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Executive summary

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The court dealt with two applications heard together: a notice of motion dated 11th April 2019 by the 1st judgment debtor seeking to set aside or review the ruling of Senior Deputy Registrar Hon. I N Barasa dated 20th February 2018 and the resulting certificate of taxation, alleging the taxing officer erroneously assessed instruction fees for an entire 50-acre parcel with 592 sub plots when previous rulings had found the advocate instructed for only 69 plots, and seeking leave to defend the bill of costs; and an objector's notice of motion dated 16th April 2019 by Charity Achieng Opon, spouse of the 1st judgment debtor, seeking a declaration that the attachment of 12th April 2019 was unprocedural and an order for return of the attached goods, which she claimed as matrimonial property. The court applied the First American Bank v Shah test, holding the taxing officer committed no error of principle, the fees were neither excessive nor based on wrong principles, and she had demonstrated how she arrived at the figure per plot. The applicant gave no reasonable explanation for his and his advocate's absence at the 7th December 2017 taxation, and his notice of objection was out of time and unprosecuted. On the objection, the advocate's unrebuted explanation that a corrected decree was issued on 27th March 2019 established that the warrants were valid at execution, so the attachment was lawful. The objector failed to prove ownership of the sofa set and carpet, and in any event spouses have equal interests in matrimonial property, permitting attachment of the judgment debtor's share. Both applications were dismissed with each party bearing their own costs, and the interim stay of execution was vacated.

Key legal issues

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01

Interference with the taxing officer's discretion

Holding

The taxing officer committed no error of principle and the fees awarded were neither excessive nor based on wrong principles; the court declined to interfere

Reasoning

The court applied First American Bank of Kenya Ltd v Shah & Others and Joreth Ltd v Kigano & Associates, which confine interference with a taxing officer's discretion to cases of error of principle or manifestly excessive fees. The ruling of Hon. I N Barasa demonstrated how she arrived at Kshs.450,000 per plot from the conveyances. The applicant and his advocate were aware of the 7th December 2017 taxation but did not attend, without explanation, and the notice of objection was filed out of time and never prosecuted.

p. 3
02

Lawfulness of the attachment and execution process

Holding

The attachment of 12th April 2019 was lawful because the fresh decree issued on 27th March 2019 rendered the warrants valid at the time of execution

Reasoning

The objector contended the warrants issued on 6th March 2019 and returned on 16th April 2019 meant the auctioneers had no authority when they attached goods on 12th April 2019. The advocate explained that the decree of 15th January 2019 had factual errors and was corrected, with a fresh decree issued on 27th March 2019, making the subsequent process within time. The objector did not rebut this explanation by affidavit.

p. 4
03

Objector's claim of ownership/matrimonial property

Holding

The objection failed; the objector did not prove the attached sofa set and carpet were hers, and matrimonial property interests are equal, permitting attachment of the judgment debtor's share

Reasoning

Under Order 22 rule 51(1), a person claiming entitlement to attached property must give notice of objection, which places the burden of proving ownership on the objector. The certificate of search showed motor vehicle KBH 302D was registered in the 1st judgment debtor's name, and the objector admitted being his spouse and a director of the 2nd judgment debtor. The court, guided by James Kariuki Nganga t/a Ndarugu Merchants v Joseph Ngae Njuguna & Another, held the claim untenable.

p. 4

Legal principles established

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  • A court cannot interfere with a taxing officer's decision unless an error of principle is shown or the fee awarded is manifestly excessive
  • An objector to attachment under Order 22 rule 51(1) bears the burden of proving entitlement or legal/equitable interest in the attached property
  • Where items are matrimonial property, both spouses have equal interest and the judgment debtor's share can be attached

Court orders

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  1. 1.Dismissal of the notice of motion dated 11th April 2019
  2. 2.Dismissal of the notice of motion dated 16th April 2019
  3. 3.Vacation of the interim orders of stay of execution earlier granted
  4. 4.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 6, Order 10 rules 6, 10 and 11; Order 22 rules 51, 52, 53, 54; Order 22 rule 51(1)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Advocates Remuneration OrderNot specified (referred to generally on relevant factors in taxation)

Cases cited (6)

  • Chai Trading Company Ltd vs Muli Mwanzia & 2 Others
    [2009] eKLR
  • First American Bank of Kenya Ltd vs Shah & Others
    [2002] IEA 64
  • John Maina Mburu t/a John Maina Mburu & Co. Advocates vs George Gitau Munene (sued as Administrator of the Estate of Samuel Gitau Munene & 3 Others
    [2015] eKLR
  • Joreth Ltd vs Kigano & Associates
    [2002] 1EA 92
  • Steel Construction Petroleum Engineering (EA) Limited vs Uganda Sugar Factory
    (Supra - not stated)
  • James Kariuki Ng'ang'a t/a Ndungu Merchants vs Joseph Ngae Njuguna & Another
    HCCA No. 575 of 2003 (Milimani)
Jurisdiction invoked
Inherent jurisdiction under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 6, Order 10 and Order 22 of the Civil Procedure Rules, 2010

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, "Paul Otieno Mungla t/a Paul Mungla & Co. Advocates v George Ogalo Oner & another; Charity Achieng Opon (Objector) [2019] KEELC 1501 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1501/eng@2019-09-25

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