Samson W. Ndegwa t/a S.W Ndegwa & Company Advocates v Mukuru Munge [2019] KEELC 4427 (KLR)
The bottom line
#Kenya's Environment and Land Court cut an advocate's taxed fees from Kshs. 103,674 to Kshs. 71,571 because the taxing officer awarded costs the advocate never claimed.
What this practically means
#Executive summary
#Key legal issues
#Whether an advocate/client relationship existed
It existed; the taxing officer perused the court file and confirmed the applicant filed and prosecuted the suit on the respondent's behalf
The respondent claimed he acted in person, but the taxing officer had perused the court file and confirmed the suit was filed on his behalf by the applicant, save for one attendance. The court was therefore satisfied services were rendered and an advocate/client relationship existed.
Correct basis for assessing instruction fees where subject matter value is unascertainable
Assessment under Schedule VI Part A (1)(a) was in order either way, since the minimum under 'other matters not provided for' is also Kshs. 45,000/-
The taxing officer found the value could not be ascertained from the pleadings. The court held Schedule VI Part A (1)(a) applies only where value is ascertainable from pleadings, consent or judgment; under 'other matters not provided for' the minimum is also Kshs. 45,000/-, so the assessment of instruction fees at the minimum was correct and not excessive either way.
Enhancement of taxed costs by 1/2 in an advocate/client bill
Enhancement was permissible under Schedule VI Part B but was erroneous because it was not claimed in the bill and the taxing officer taxed an amount exceeding what was claimed
Schedule VI Part B requires enhancement by 1/2 in advocate/client bills, but the applicant did not seek the enhancement nor appear to amend the bill. Awarding unclaimed costs without amendment was an error of principle, though correctable by the court without remitting the bill since no discretion was required.
Legal principles established
#- A court will not interfere with a taxing officer's decision unless it is shown the decision was based on an error of principle or the fee awarded was manifestly excessive
- Schedule VI Part A (1)(a) of the Advocates (Remuneration) Order applies only where the value of the subject matter can be ascertained from the pleadings, consent or judgment; otherwise instruction fees fall under 'other matters not provided for'
- A taxing officer cannot award costs not sought in the bill of costs without an amendment
Court orders
#- 1.The respondent's application dated 11th September 2017 succeeds in part
- 2.The decision of the taxing officer made on 27th July 2017 is set aside
- 3.In place thereof the applicant's bill of costs dated 6th April 2017 is taxed at Kshs. 71,571/- (Part A Kshs. 55,350/- plus 16% VAT Kshs. 8,856/- plus disbursements Kshs. 7,365/-)
- 4.Each party to bear its own costs
- Jurisdiction invoked
- Reference against a taxing officer's decision under the Advocates (Remuneration) Order, Chamber Summons procedure
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Samson W. Ndegwa t/a S.W Ndegwa & Company Advocates v Mukuru Munge [2019] KEELC 4427 (KLR)", Case Analysis (2019). Chamber Summons dated 11th September 2017 arising from Nairobi ELC No. 126 of 2016, Mukuru Munge v Paul Mutisya Mutuku Kalulu. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4427/eng@2019-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.