Onindo Onindo & Associates Advocates v Gatatha Farmers Co. Ltd & another [2019] KEELC 2330 (KLR)
The bottom line
#The court refused to increase an advocate's taxed legal fees, confirming Kenyan judges rarely disturb a taxing officer's decision without proof of clear error.
What this practically means
#Executive summary
#Key legal issues
#Whether taxation should be disturbed on account of an alleged agreed remuneration arrangement
Ground fails; no such arrangement is evidenced
The court found that the alleged remuneration arrangement between advocates and client was not supported by any evidence in the affidavits filed either in support of the taxation or the reference. A bare insinuation without evidentiary support cannot found a basis for the court to interfere with a taxing officer's decision.
Whether the instruction fee should be based on the value of the entire land parcel or the portion actually in dispute
The taxing master correctly based the fee on the 38 acres in dispute, not the entire 300 acres
The court examined the pleadings in Kitale ELC No. 36 of 2013 where the plaintiff claimed 38 acres out of a 300-acre parcel, and the taxing master's ruling quoting the plaintiff's own affidavit that the 38 acres were the subject matter in contention. Since not all the land was under threat, the value of the whole parcel was not the correct basis for the instruction fee.
Whether individual items in the Bills were taxed without consideration of the record
The taxing master examined each and every item; applicant failed to identify specific items complained of
The court noted the applicant's affidavit did not segregate specific items alleged to be wrongly taxed, offering only generalized statements. The rulings of 1/8/2018 showed the taxing master examined every item against the record. Vague and generalized complaints do not invoke the court's supervisory power over a taxation.
Legal principles established
#- A court will not interfere with a taxing officer's decision unless it is shown the decision was based on an error of principle or the fee awarded was manifestly excessive
- Items in a Bill of Costs are taxed in accordance with the remuneration order current at the time of the act charged for
- A taxing officer does not arrive at a figure by merely multiplying the scale fee but places a fair value on the work and responsibility involved, and justification for the exercise of discretion must be specified cogently
- Generalized and vague complaints about a taxation do not invoke the court's power to examine the items taxed
Court orders
#- 1.The two applications (references) dated 2/11/2018 in ELC Misc. No. 12 of 2017 and ELC Misc. No. 11 of 2017 are consolidated
- 2.The two consolidated references are dismissed with costs to the respondents
- Jurisdiction invoked
- Advocates Remuneration Order, Sections 3A and 63 of the Civil Procedure Act and the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Onindo Onindo & Associates Advocates v Gatatha Farmers Co. Ltd & another [2019] KEELC 2330 (KLR)", Case Analysis (2019). Kitae ELC Misc. Civil Application No. 12 of 2017 (consolidated with ELC Misc. No. 11 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2330/eng@2019-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.