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ELCDismissedChamber Summons dated 6th October, 2017 (reference from taxation in Nairobi HCCC No. 165 of 2009, Magnate Ventures Ltd v David Some Barno & others)· [2019] KEELC 4785 (KLR)

Mukele Ngacho & Co Advocates v Emanga Ne Sameta Investments Limited [2019] KEELC 4785 (KLR)

High Court of Kenya
24 January 2019
3,087 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court confirmed that when a settlement is silent on value, advocates' fees are calculated from the pleadings, not what parties later negotiated privately.

What this practically means

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Executive summary

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The applicant, Emanga Ne Sameta Investments Ltd, was the 4th defendant in Nairobi HCCC No. 165 of 2009, Magnate Ventures Ltd v David Some Barno & others, a suit for specific performance of an agreement for sale of a 4.25-acre portion of Nairobi/Block72/2881 for Kshs.53,000,000/- plus damages of Kshs.15,000,000/-. That suit was settled by consent on 9th November, 2011. A dispute over fees followed between the applicant and its former advocates, Mukele Ngacho & Co. Advocates, whose bill of costs of Kshs.2,793,849.68 was taxed at Kshs.1,452,324.24 by Senior Deputy Registrar I. N. Barasa on 2nd October, 2017. The applicant filed a reference by chamber summons dated 6th October, 2017, challenging the taxation of items 1, 2 and 14, principally complaining that the taxing officer wrongly used Kshs.68,000,000/- as the value of the subject matter instead of the settlement figure of Kshs.5,500,000/- and wrongly included damages claimed in that value. The respondent maintained that the settlement consent disclosed no value, that the Kshs.5,500,000/- was not on the court record, and that the reference was procedurally defective for want of notice under paragraph 11(1). Applying Joreth Ltd v Kigano & Associates and the Nyangito principles, the court held the value could not be ascertained from the consent, which mentioned only a flat of unstated value, and that the taxing officer correctly resorted to the pleadings. Item 14 having been taxed off entirely, and no error of principle shown, the chamber summons was dismissed with costs to the respondent on 24th January, 2019.

Key legal issues

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01

Whether the taxing officer correctly fixed the value of the subject matter at Kshs.68,000,000/- from the pleadings

Holding

Yes. The consent settling the original suit did not disclose a value; the taxing officer was entitled to turn to the pleadings, which pleaded a purchase price of Kshs.53,000,000/- and damages of Kshs.15,000,000/-

Reasoning

The consent marking the original suit settled referred only to a transfer of a flat without stating its value and did not mention the Kshs.5,500,000/- refund the applicant relied on. The amended plaint pleaded the agreed sale price of Kshs.53,000,000/- and special damages of Kshs.15,000,000/- sought in lieu of or in addition to specific performance. The sum of Kshs.5,500,000/- was neither pleaded nor in the consent, so the taxing officer rightly assessed instruction fees on the pleaded value of Kshs.68,000,000/-.

p. 3
02

Whether the court should interfere with the taxing officer's discretion

Holding

No. The taxing officer took into account all relevant factors; the instruction fee awarded was the minimum on the assessed value, and the applicant showed no error of principle

Reasoning

Applying the principles in Nyangito & Co. Advocates v Doinyo Lessos Creameries Ltd, interference is only warranted on an error of principle or manifest excess. The taxing officer considered the pleadings and the consent, chose the correct basis of assessment, and awarded minimum instruction fees on the assessed value. The applicant identified no irrelevant factor considered or relevant factor omitted, so the court found no reason to disturb her discretion.

p. 3
03

Whether the reference failed for want of notice under paragraph 11(1) of the Advocates Remuneration Order

Holding

The respondent raised this procedural objection but the court decided the reference on its merits and dismissed it

Reasoning

The respondent contended the applicant should first have given notice to the taxing officer under paragraph 11(1) of the Advocates Remuneration Order before filing the reference, and that the reference should fail on that irregularity. The judgment does not record any determination of this objection; the court proceeded to consider and dismiss the reference on its merits, so no holding was made on the point.

p. 3

Legal principles established

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  • The value of the subject matter of a suit for taxation purposes is to be determined from the pleadings, judgment or settlement; if not ascertainable therefrom, the taxing officer may use discretion
  • A court will not interfere with a taxing officer's discretion unless the decision was based on an error of principle or the fee was manifestly excessive
  • Where a decision discloses an error of principle, the normal course is remission to the taxing officer unless the error could not materially have affected the assessment

Court orders

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  1. 1.The chamber summons dated 6th October, 2017 is dismissed
  2. 2.Costs of the reference to the respondent

Authorities

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Legislation

  • Advocates Remuneration Orderparagraph 11(1); Part A of Schedule VI (Remuneration Order, 2009)

Cases cited (5)

  • Nyangito & Co. Advocates v Doinyo Lessos Creameries Ltd.
    [2014] eKLR
  • Visser v Gubb
    1981(3) SA 753 (C) 754H - 755 C
  • KTK Advocates v Baringo County Government
    (2017) eKLR
  • Joreth Ltd. v Kigano & Associates
    (2002) E.A 92
  • Magnate Ventures Ltd. v David Some Barno, Samwel Warugu Kimotho, Winfred Nyawira Maina and Emanga Ne Sameta Investments Ltd.
    Nairobi HCCC No. 165 of 2009
Jurisdiction invoked
Advocates Remuneration Order - reference against a taxing officer's decision under paragraph 11

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, "Mukele Ngacho & Co Advocates v Emanga Ne Sameta Investments Limited [2019] KEELC 4785 (KLR)", Case Analysis (2019). Chamber Summons dated 6th October, 2017 (reference from taxation in Nairobi HCCC No. 165 of 2009, Magnate Ventures Ltd v David Some Barno & others). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4785/eng@2019-01-24

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