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ELCPartially AllowedMiscellaneous Application (Chamber Summons dated 30th January 2019)· [2019] KEELC 2973 (KLR)

Manyonge Wanyama & Associates v County Government of Kirinyaga [2019] KEELC 2973 (KLR)

High Court of Kenya
20 June 2019
2,942 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court set aside a law firm's heavily-reduced fee bill, ruling the taxing officer ignored key factors and must re-tax it afresh.

What this practically means

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Executive summary

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This ruling by the High Court at Embu (Y.M. Angima J) determines a reference under paragraph 11 of the Advocates Remuneration Order and section 44 of the Advocates Act by the firm Manyonge Wanyama & Associates against the decision of taxing officer Hon. Juliana Ndeng'eri of 17th January 2019, who taxed the Applicant's amended advocate-client bill of costs (drawn at Ksh. 284,030,906.80) at Kshs. 1,169,468.80. The Applicant advanced nine grounds, principally that the taxing officer erred in principle on the instruction fee, wrongly held VAT applied only to professional fees, failed to tax several items, and should have applied Schedule VI and the higher scale. The Respondent filed neither response nor submissions despite directions. The court held the taxing officer was entitled to discount complexity and novelty (no certification by the trial judge), and agreed the Ksh. 8.1 billion subject-matter figure relied on by the Applicant had no basis in the pleadings or judgment. However, the taxing officer's failure to consider other relevant factors (nature and importance of the matter, time, responsibility, volume of documents) and her failure to identify the minimum scale fee before adjusting it constituted errors of principle entitling the court to intervene. VAT was correctly confined to professional fees; the reference to Schedule VII was a typographical error; and absent a paragraph 50A order the lower scale applied. Item No. 3 was never taxed and items 5-18 lacked any record of how they were taxed. The court set aside the certificate of taxation dated 28th January 2019, remitted the bill to a different taxing officer at Embu Law Courts for fresh taxation, declined referral outside Embu County, and awarded the costs of the reference to the Applicant.

Key legal issues

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01

Error of principle in assessment of instruction fee

Holding

The taxing officer erred in principle by treating the matter as attracting only a nominal fee without considering other relevant factors, and by failing to identify the applicable minimum scale fee before adjusting it

Reasoning

The taxing officer discounted complexity and novelty (which the court held she was entitled to do absent certification by the trial judge), but her ruling showed no consideration of the nature and importance of the subject matter to the parties, the time and responsibility involved, and the volume of documents. That omission constituted an error of principle, entitling the court to intervene on the instruction fee.

p. 2
02

Value of subject matter in taxation

Holding

The figure of Ksh. 8.1 billion relied on by the Applicant had no basis in the pleadings or judgment and could not be used; value of subject matter was inapplicable

Reasoning

The court agreed with the taxing officer that the value of the subject matter could not be ascertained from the pleadings or judgment. Citing Joreth Ltd v Kigano & Associates, the court held that evidence from the bar on the value of suit property is inadmissible in taxation, so the Applicant's figure was without foundation.

p. 2
03

VAT on disbursements

Holding

No error by the taxing officer; VAT applies only to professional fees, not disbursements

Reasoning

The Applicant faulted the taxing officer for holding that VAT did not extend to disbursements, but cited no legal authority to the contrary. The court agreed that VAT is chargeable only upon legal professional services rendered.

p. 3
04

Application of Schedule VII instead of Schedule VI

Holding

The reference to Schedule VII was a clerical or typographical error; Schedule VI plainly applied

Reasoning

Schedule VII does not provide for taxation of correspondence or constitutional petitions, and the taxing officer taxed court attendances at rates found only in Schedule VI. The court therefore treated the reference to Schedule VII as a typographical error and found no substance in the ground.

p. 3
05

Higher scale versus ordinary scale

Holding

Absent an order under paragraph 50A certifying the higher scale, the taxing officer was bound to tax on the lower (ordinary) scale

Reasoning

Paragraph 50 of the Order provides that bills in High Court proceedings are taxed per Schedule 6 on the lower scale unless the court orders otherwise under paragraph 50A on special grounds. The Applicant furnished no such order, so the 9th ground failed.

p. 3
06

Taxation of item Nos. 5-18 and item No. 3

Holding

Item No. 3 was not taxed and items 5-18 lacked any record of how they were taxed; both require fresh taxation

Reasoning

There was no indication item No. 3 (drawing the petition) was taxed as drawn or to nil, and the 777 folios claimed were misleading since supporting documents should be charged as copies. For items 5-18, no figures on record showed how they were taxed, making piecemeal taxation impossible and fresh taxation the only viable option.

p. 3

Legal principles established

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  • A court may interfere with a taxing officer's decision only where it is shown the decision was based on an error of principle or the fee awarded was manifestly low or excessive as to justify an inference of error of principle
  • Evidence from the bar on the value of the suit property is not admissible in taxation of a bill of costs
  • The taxing officer must set out the applicable minimum scale fee before increasing or reducing it
  • Where Schedule 6 provides a higher and lower scale, costs are taxed on the lower scale unless the court makes an order under paragraph 50A on special grounds
  • VAT is chargeable only on legal professional services rendered and not on disbursements

Court orders

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  1. 1.The certificate of taxation dated 28th January 2019 is set aside
  2. 2.The Applicant's amended bill of costs dated 24th May 2018 is remitted to a different taxing officer at Embu Law Courts for fresh taxation in accordance with the ruling and Schedule 6 of the Order
  3. 3.Direction that the taxing officer convert the pages of the petition into folios for item No. 3
  4. 4.Costs of the Reference to the Applicant

Authorities

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Legislation

  • Advocates Actsection 44
  • Advocates Remuneration Orderparagraph 11
  • Advocates Remuneration Orderparagraph 50
  • Advocates Remuneration Orderparagraph 50A
  • Advocates Remuneration OrderSchedule VI
  • Advocates Remuneration OrderSchedule VII

Cases cited (7)

  • R V Commissioner of Domestic Taxes ex-parte Ukwala Supermarkets Ltd & 2 Others
    Nairobi Misc. Application No. 319 of 2015 [2018] eKLR
  • Premchand Raichand Ltd & Another V Quarry Services of East Africa Ltd & Another
    [1972] EA 162
  • OPA Pharmacy Ltd V House Mc George Ltd
    Kampala [1972] EA 233
  • R V Minister for Agriculture & 2 Others ex parte Samuel Muchiri W. Njuguna & 6 Others
    [2006] eKLR
  • Butt & Another V Sifuna T/A Sifuna & Co. Advocates
    [2009] KLR 427
  • First American Bank of Kenya vs. Shah and Others
    [2002] 1 EA 64
  • Joreth Ltd Vs Kigano & Associates
    [2002] eKLR
Jurisdiction invoked
Paragraph 11 of the Advocates Remuneration Order and section 44 of the Advocates Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Manyonge Wanyama & Associates v County Government of Kirinyaga [2019] KEELC 2973 (KLR)", Case Analysis (2019). Miscellaneous Application (Chamber Summons dated 30th January 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2973/eng@2019-06-20

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