Rachier & Amollo Advocates LLP v National Hospital Insurance Fund Board of Management [2019] KEELC 3204 (KLR)
The bottom line
#A Kenyan court upheld a Kshs 35 million legal fee award to Rachier & Amollo Advocates, rejecting NHIF's attempt to overturn the taxation of costs.
What this practically means
#Executive summary
#Key legal issues
#Time-bar under paragraph 11(2) of the Advocates (Remuneration) Order 1962
The reference was not time-barred; there was no conclusive evidence that the client received the taxing officer's reasons before 12/6/2018
The client requested reasons by letter dated 23/5/2018. The taxing officer replied on 30/5/2018 clarifying that her reasons were in the ruling body. The client claimed receipt of the letter on 12/6/2018, filed the reference on 26/6/2018. The court found no conclusive evidence to disapprove that contention, since the mode of receipt was not disclosed but nothing contradicted it.
Whether the taxing officer erred in principle in assessing instruction fee at Kshs 15,000,000
No error of principle; the taxing officer outlined the basis of her decision, followed the Joreth principle and did not rely on the Kshs 1,100,000,000 figure alleged
The taxing officer rejected the valuation report, followed Joreth Limited v Kigano & Associates, and explained that the award covered both the claim and counterclaim, the land's size and location, and the interests of the parties. She did not adopt the value of Kshs 1,100,000,000 as alleged; the decision was reasoned, not arbitrary.
Whether the award of instruction fee and getting up fee was manifestly excessive
The award was not manifestly high as to amount to an injustice; the getting up fee of one third of the assessed instruction fee was properly awarded
The court considered the award against the professional labour expended, the subject matter being a 9.25 hectare parcel in Karen, Nairobi, and that the instruction fee covered both claim and counterclaim. Both the claim and counterclaim were defended and the suit was set down for hearing severally, justifying the getting up fee of one third of the instruction fee.
Whether the advocate's application under Section 51(2) of the Advocates Act was merited
The application satisfied Section 51(2); the certificate of taxation stood, retainer was undisputed and no replying affidavit was filed
The advocate exhibited a certificate of costs issued by the taxing officer. No replying affidavit was filed against the motion, no evidence suggested the certificate had been set aside, and retainer was not disputed. Section 51(2) thus entitled the advocate to judgment for the certified sum, and the motion was allowed as prayed.
Legal principles established
#- The value of the subject matter for purposes of taxation of instruction fee is determined from the pleadings, judgment or settlement; if not ascertainable, the taxing officer may use discretion considering the nature and importance of the matter and other relevant circumstances
- A court will interfere with a taxing officer's decision only where it is based on an error of principle or where the fee awarded is manifestly excessive or so low as to amount to an injustice
- Under Section 51(2) of the Advocates Act, an unchallenged certificate of taxation, where retainer is not disputed, entitles the advocate to judgment for the certified sum
Court orders
#- 1.The client's reference brought by way of chamber summons dated 26/6/2018 is declined and the advocate shall have costs of the reference
- 2.The advocate's notice of motion dated 8/6/2018 is allowed in terms of prayer (a) of the motion
- 3.The taxed costs shall attract interest at court rate from the date of taxation
- 4.The advocate shall have costs of the said application
- Jurisdiction invoked
- Paragraph 11 of the Advocates (Remuneration) Order 1962 and Section 51(2) of the Advocates Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rachier & Amollo Advocates LLP v National Hospital Insurance Fund Board of Management [2019] KEELC 3204 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3204/eng@2019-05-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.