Humphrey & Company Advocates LLP v Rural Electrification Authority [2019] KEELC 2910 (KLR)
The bottom line
#A Kenyan court cut an advocate's Kshs. 154 million fee to Kshs. 5.45 million because it was based on the wrong property value.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of the reference under paragraph 11 of the Advocates Remuneration Order
The reference was filed in time or, in any event, time was enlarged
The reference was filed 16 days after the ruling, exceeding the 14-day period. The court took account of the holiday falling within that period and, invoking paragraph 11(4), found no compelling reason to refuse enlargement of time despite no express prayer for it.
Whether the taxing officer supplied reasons for the taxation
The ruling did not contain adequate reasons for the contested items
Applying Evans Thiga Gaturu, where reasons appear on the face of the decision no further reasons need be furnished, but here the taxing master's stated rationale relied on undefined criteria while admitting the subject value was not ascertainable, so the certificate of costs could not stand.
Whether the Service Level Agreement bound the fee chargeable
The SLA had lapsed and did not govern this matter
The agreement ran from 1/7/2015 to 31/6/2017, while the underlying suit was filed on 11/4/2018. There was also no specific agreement applying to this specific matter, so the respondent was free to tax its bill.
Whether the taxing officer erred in principle in valuing the subject matter
He erred by using the project sum instead of the value of the land
The suit concerned compensation for a 210-acre parcel of land in Garissa County. The taxing master based instructions fees on the multi-billion shilling project contract value while admitting the subject value was not clearly ascertainable, contrary to the Joreth principle and the Premchand Raichand principles requiring judicious, principled exercise of discretion.
Whether the court should interfere with the quantum
The decision was set aside and instructions fees substituted at Kshs. 5,452,500
Following Kipkorir, Titoo & Kiara, a judge on reference who finds an error of principle may remit or deal with the matter himself. The court took judicial notice of a global land value of Kshs. 1,000,000 per acre, computed Kshs. 3,635,000 under Schedule VI and added half advocate/client fees.
Legal principles established
#- Where the value of the subject matter is ascertainable from the pleadings, it is determined from the pleadings, judgment or settlement; where it is not, the taxing officer must exercise discretion on defined principles rather than undefined criteria
- Instructions fee is an independent and static item charged once only, not affected by the stage the suit has reached
- A state entity is entitled to be represented by the Attorney General, whose submissions the taxing master ought to have considered
- A taxing officer's decision based on undefined criteria and failure to properly exercise discretion cannot stand and will be interfered with on reference
Court orders
#- 1.Reference allowed
- 2.Taxing Officer's decision awarding Kshs. 154,000,000 in respect of instructions fees set aside
- 3.Instructions fees substituted with Kshs. 5,452,500, computed from a judicially noticed global value of Kshs. 1,000,000 per acre for land in Garissa County (subject property valued at Kshs. 210,000,000), yielding Kshs. 3,635,000 plus half advocate/client fees of Kshs. 1,817,500
- Jurisdiction invoked
- Paragraph 11 of the Advocates Remuneration Order - reference to a judge against the decision of a taxing officer
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Humphrey & Company Advocates LLP v Rural Electrification Authority [2019] KEELC 2910 (KLR)", Case Analysis (2019). Chamber Summons application dated 23rd April, 2019 (Reference against Taxing Master's ruling of 8th April, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2910/eng@2019-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.