Koskei Monda & Co. Advocates v David Some Barno & 2 others [2019] KEELC 4928 (KLR)
The bottom line
#The High Court confirmed a Kshs.1.47 million fee award, holding that an informal phone-call fee proposal is not a binding agreement and taxing officers value suits from the pleadings.
What this practically means
#Executive summary
#Key legal issues
#Whether a valid agreement on fees under section 45(1) of the Advocates Act existed so as to bar taxation
No valid agreement existed; the document was a conditional proposal by the respondent, not accepted in writing by the applicants, and did not meet the statutory conditions.
The court examined the purported fee agreement and the letter of 27th June, 2012. The alleged agreement was made through telephone conversation and was conditional. There was nothing in writing showing the applicants agreed to pay Kshs.750,000/-, nor evidence of payment as at the filing of the bill. Section 45(1) prescribes conditions for such agreements which were not met, so the taxing officer was entitled to proceed with taxation.
The correct value of the subject matter for assessing instruction fees
The taxing officer correctly adopted Kshs.68,000,000/- (Kshs.53,000,000/- suit property plus Kshs.15,000,000/- damages claimed) as derived from the pleadings, per Joreth Ltd v Kigano & Associates.
The consent settling the original suit did not state the value of the flat transferred. The Kshs.3,000,000/- figure came from the applicants during taxation, and the letter of 3rd December, 2010 was not part of the court record and did not refer to the transferred house. Following Joreth Ltd, value is determined from the pleadings, judgment or settlement; here the pleadings yielded Kshs.68,000,000/-.
Whether the taxing officer should have deducted the Kshs.350,000/- already paid by the applicants
The ground fails; taxation assesses fees, and advance payments are a matter for accounts when settling the taxed costs, not a ground for challenging the taxation.
The taxing officer's role is to assess the fees payable to the advocate. Any advance payments by the client do not affect that assessment; the client may take accounts or deduct such payments when settling the taxed costs. The alleged payment therefore furnished no basis for interfering with the taxation decision.
Legal principles established
#- A court may interfere with a taxing officer's discretion only where the decision is based on an error of principle or the fee awarded is manifestly excessive; the normal remedy for an error of principle is remission for reassessment.
- The value of the subject matter of a suit for purposes of taxation is to be determined from the pleadings, judgment or settlement, and where not ascertainable the taxing officer may exercise discretion.
- A fee agreement under section 45(1) of the Advocates Act must satisfy the statutory conditions; a mere proposal not shown to be accepted does not amount to an agreement.
Court orders
#- 1.The Chamber Summons dated 10th October, 2017 is dismissed with costs
- Jurisdiction invoked
- Reference against a taxing officer's decision under the Advocates Act (Cap 16) and the Advocates Remuneration Order, 2009
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Koskei Monda & Co. Advocates v David Some Barno & 2 others [2019] KEELC 4928 (KLR)", Case Analysis (2019). Chamber Summons dated 10th October, 2017 (arising from taxation in Nairobi HCCC No. 165 of 2009, Magnate Ventures Ltd v David Some Barno & 3 Others). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4928/eng@2019-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.