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ELCPartially AllowedKakamega H.C.E.L.C. No. 237 of 2016 (application dated 17th February 2020)· [2020] KEELC 893 (KLR)

Cleophas Malalah v Kakamega County Government & 2 others [2020] KEELC 893 (KLR)

High Court of Kenya
26 October 2020
NMN.A. Matheka
2,767 words in judgment
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The bottom line

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The High Court in Kakamega scrapped a lawyer's taxed legal fees bill and ordered it re-taxed afresh because the taxing officer never explained his decision.

What this practically means

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Executive summary

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The applicant, Cleophas Malalah, moved the High Court at Kakamega by an application dated 17th February 2020 under Order 42 Rule 6 and Order 22 Rule 25 of the Civil Procedure Rules, seeking a stay of execution against M/s Z.J. Atulo & Company Advocates on a decree arising from a bill of costs dated 20th April 2017, taxed on 30th August 2017, plus leave to file a reference out of time and an order compelling the Deputy Registrar to explain the taxation. He contended that the bill was defective, that duplicate bills were taxed for the 2nd and 3rd defendants represented by the same advocate, and that his Rule 11 objection was never answered by the taxing master. The 3rd respondent raised a preliminary point that the applicant's advocates were improperly on record under Order 9 Rule 9. The court held that because the underlying suit had been withdrawn, not determined, there was no judgment and Order 9 Rule 9 did not apply; the advocates had complied with Order 9 Rule 7 by filing a notice of change on 20th April 2018. On the merits, applying First American Bank vs Shah, Joreth Ltd vs Kigano and the ex parte W'njuguna principles, the court found the taxing master failed to give reasons on the objection and failed to indicate the Rules and Schedule relied upon, a material error of principle. The court set aside the taxation and certificate of costs, remitted the bill to another taxing master, and ordered each party to bear their own costs.

Key legal issues

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01

Whether the applicant's advocates were properly on record

Holding

They were properly on record, having complied with Order 9 Rule 7 by filing a notice of change of advocates on 20th April 2018; Order 9 Rule 9 was inapplicable as there was no judgment

Reasoning

The court adopted Ngome vs Plantex on the meaning of judgment, holding that a withdrawal is not a determination on the merits. Since no judgment had been passed, Order 9 Rule 9 did not apply, and the notice of change of advocates filed on 20th April 2018 satisfied Order 9 Rule 7.

p. 2
02

Whether the taxing master's decision should be set aside

Holding

Yes - the taxing master failed to give reasons despite the objection and failed to indicate the Rules and Schedule of the Advocates Remuneration Order relied on, amounting to a material error of principle

Reasoning

Applying First American Bank vs Shah and Joreth Ltd vs Kigano, interference requires error of principle or manifestly excessive fees. The court found on the record that the objection under Rule 11(2) was never answered and the taxing master did not indicate the rules relied upon, which was a material error of principle justifying setting aside and remittal to another taxing master.

p. 3

Legal principles established

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  • A withdrawal of a suit is not a determination of any questions or issues before the court, so Order 9 Rule 9 (applicable after judgment) does not govern a change of advocate following a withdrawal
  • A taxing master's decision may only be interfered with where it is based on an error of principle or the fee awarded is manifestly excessive as to justify an inference of error of principle

Court orders

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  1. 1.The Taxing Master's decision on the bill of costs dated 20th April 2017, taxed on 30th August 2017, and the certificate of costs issued thereon dated 17th April 2018, and all consequential orders be and are hereby set aside
  2. 2.The bill of costs dated 20th April 2017 and taxed on 30th August 2017 shall be remitted to another Taxing Master for taxation
  3. 3.Each party shall meet their respective costs of this application

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 22 Rule 25
  • Civil Procedure RulesOrder 25 Rules 1 and 2
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 9 Rule 7
  • Advocates (Remuneration) OrderRule 11(1) and (2)

Cases cited (4)

  • Ngome vs Plantex Company Limited
    (1984) KLR 792
  • First American Bank of Kenya vs Shah and Others
    (2002) EA 64 / (2002) E.A.L.R 64
  • Joreth Ltd vs Kigano and Associates
    (2002) 1 EA 92 / (2002) eKLR
  • Republic vs. Minister for Agriculture & 2 Others ex parte Samuel Muchiri W’njuguna
    (2006) eKLR
Jurisdiction invoked
Order 42 Rule 6 and Order 22 Rule 25 of the Civil Procedure Rules; Rule 11 of the Advocates (Remuneration) Order

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, "Cleophas Malalah v Kakamega County Government & 2 others [2020] KEELC 893 (KLR)", Case Analysis (2020). Kakamega H.C.E.L.C. No. 237 of 2016 (application dated 17th February 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/893/eng@2020-10-26

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