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ELCDismissedChamber Summons dated 13th August 2015 (Advocate/Client Bill of Costs reference)· [2019] KEELC 3083 (KLR)

J.K.N Kamunyori & Company v John Wainaina Karau [2019] KEELC 3083 (KLR)

High Court of Kenya
9 May 2019
LKL. Komingoi
956 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan advocate who only reviews a draft sale agreement cannot claim full sale-transaction fees; incomplete work is taxed at lower Schedule 5 rates.

What this practically means

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Executive summary

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This is a first-instance reference by way of chamber summons dated 13th August 2015, brought under paragraph 11 of the Advocates (Remuneration) Order and Sections 1A, 1B and 3A of the Civil Procedure Act, challenging the taxing officer's ruling of 16th July 2015. The applicant, J K N Kamunyori & Company Advocates, sought to set aside the taxing officer's decision to tax item 17 (instruction fees) of a Bill of Costs filed on 13th November 2014 under Schedule V of the Advocates Remuneration Order, contending that the item should have been taxed under Schedule I First Scale of the Advocates (Remuneration) (Amendment) Order 2014 because the sale transaction was completed. The applicant argued he was the respondent's advocate throughout the transaction and witnessed execution of the sale agreement by the vendor. The respondent opposed, contending the applicant only reviewed a draft sale agreement prepared by M/S Nyiha Mukoma & Company Advocates, and relied on China Wuyi & Co. Ltd vs Samson Kimetto [2014] eKLR. After examining the correspondence, the court found that a 3rd July 2014 email confirmed the instructions were merely to review a sale agreement drafted by the purchaser's advocate, that the agreement the applicant exhibited as drawn by his own firm was in fact the draft forwarded to him for review, and that no completion documents were exhibited. Holding that the business was not completed and fell under paragraph 18(f), the court found no fault with the taxing officer's assessment under Schedule 5, dismissed the application, and ordered each party to bear his own costs.

Key legal issues

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01

Whether the applicant carried out complete instructions for a sale transaction attracting Schedule I First Scale fees, or only reviewed a draft sale agreement attracting Schedule 5 fees under paragraph 18(f)

Holding

The applicant only reviewed a draft sale agreement forwarded by the respondent; no completion documents were exhibited and the transaction was not completed, so the taxing officer correctly taxed under Schedule 5

Reasoning

The court examined the emails between the parties. An email dated 3rd July 2014 confirmed the instructions were to review a sale agreement drafted by the purchaser's advocate. The sale agreement the applicant attached as drawn by his firm was in fact the same draft forwarded to him for review. He exhibited no completion documents, showing the business was not completed, so paragraph 18(f) and Schedule 5 applied.

p. 2

Legal principles established

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  • Where business referred to under paragraph 18 is not completed and remuneration for other deeds or documents or non-contentious business is not otherwise provided for, remuneration is prescribed in Schedule 5 of the Advocates Remuneration Order

Court orders

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  1. 1.The chamber summons dated 13th August 2015 is dismissed
  2. 2.Each party to bear his own costs

Authorities

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Legislation

  • Advocates ActAdvocates (Remuneration) Order, paragraph 11
  • Civil Procedure ActSections 1A, 1B and 3A
  • Advocates Remuneration OrderSchedule V
  • Advocates (Remuneration) (Amendment) Order 2014Schedule I First Scale; paragraph 18(f); paragraph 23

Cases cited (1)

  • China Wuyi & Co. Ltd vs Samson Kimetto
    [2014] eKLR
Jurisdiction invoked
Paragraph 11 of the Advocates (Remuneration) Order in the Advocates Act Chapter 16 Laws of Kenya; Sections 1A, 1B and 3A of the Civil Procedure Act Cap 21 Laws of Kenya

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, "J.K.N Kamunyori & Company v John Wainaina Karau [2019] KEELC 3083 (KLR)", Case Analysis (2019). Chamber Summons dated 13th August 2015 (Advocate/Client Bill of Costs reference). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3083/eng@2019-05-09

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