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ELCDismissedReference under Rule 11(2) of the Advocates Remuneration Order re Advocate/Client Bill of Costs dated 4/8/2017· [2019] KEELC 3962 (KLR)

Njeri Kariuki Advocate v Mary Wamaitha Kaittany [2019] KEELC 3962 (KLR)

Environment and Land Court
12 March 2019
1,633 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan advocate lost her fee challenge because she never gave the taxing officer evidence to support her bill — bring your documents to taxation, not to the reference.

What this practically means

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Executive summary

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Njeri Kariuki Advocate filed a reference under Rule 11(2) of the Advocates Remuneration Order challenging the taxing officer's assessment of 28/2/2018 of an advocate/client bill of costs dated 4/8/2017 relating to conveyance services over three parcels of land (LR Nos 12422/207, 12422/343 and 12422/344), in which the taxing officer awarded Kshs 63,635.60. The advocate contended that the taxing officer applied the wrong Schedule, wrongly based instruction fees on the consideration in the transfer documents rather than on stamp duty or market value (alleged at Kshs 154,310,000), and improperly struck out correspondence items. The client opposed, arguing the deeds of transfer showed a cumulative consideration of Kshs 1,200,000, on which instruction fees were properly pegged at 1.5%, and that striking out client-correspondence items was proper. Justice Eboso framed a single issue: whether the taxing officer committed an error of principle. Applying the settled test that a court interferes only where there is an error of principle, a manifestly high or low award, or an injudicious exercise of discretion, the court held the advocate failed to place any evidential material before the taxing officer and could not introduce evidence for the first time in submissions on the reference. The taxing officer properly relied on the unchallenged deeds of transfer. Items 3 and 14 were properly taxed off as client correspondence included in instruction fees, and unproved disbursements were properly disallowed. The reference was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the taxing officer erred in basing instruction fees on the consideration in the deeds of transfer

Holding

No error; the advocate adduced no evidence of a different value, so the taxing officer properly relied on the deeds of transfer

Reasoning

The advocate filed only the bill of costs without an affidavit or supporting documents. The client filed a replying affidavit exhibiting deeds of transfer showing the consideration, which the advocate did not challenge. In the absence of controverting evidence, the taxing officer properly acted under paragraph 21 of the Advocates Remuneration Order by pegging fees on the consideration in the deeds.

p. 2
02

Whether the taxing officer erred in taxing off items 2, 3 and 14 (correspondence items)

Holding

No error; item 2 was allowed as drawn and items 3 and 14 were properly taxed off as client correspondence included in instruction fees

Reasoning

The taxing officer's ruling distinguished chargeable correspondence from correspondence between advocate and client, which is included in the instruction fee. Items 3 and 14 fell in the latter category. The disbursement items were also taxed off for want of proof, as the advocate presented no evidential material to support them.

p. 2

Legal principles established

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  • A superior court interferes with a taxing officer's decision only on an error of principle or where the award is manifestly high or low as to amount to an injustice, or where discretion was not exercised judiciously
  • An advocate must place evidential material supporting the bill of costs before the taxing officer at taxation, and cannot introduce evidence for the first time in submissions on a reference

Court orders

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  1. 1.The reference fails for lack of merit
  2. 2.Each party to bear their own costs of the reference

Authorities

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Legislation

  • Advocates Remuneration OrderRule 11(2)
  • Advocates Remuneration OrderParagraph 21
  • Advocates Remuneration OrderParagraph 13A
  • Advocates Remuneration OrderParagraph 20(1)(h)

Cases cited (1)

  • Republic vs Ministry of Agriculture and 2 Others, Ex parte Muchiri W'Njuguna & Others
    (2006)
Jurisdiction invoked
Rule 11(2) of the Advocates Remuneration Order

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, "Njeri Kariuki Advocate v Mary Wamaitha Kaittany [2019] KEELC 3962 (KLR)", Case Analysis (2019). Reference under Rule 11(2) of the Advocates Remuneration Order re Advocate/Client Bill of Costs dated 4/8/2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3962/eng@2019-03-12

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