Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the excerpt· [2020] KEELC 910 (KLR)

Joseph Musungu Ngachi v Henry Mukhwana Kwenuli & another [2020] KEELC 910 (KLR)

High Court of Kenya at Kakamega
27 October 2020
1,613 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

The High Court dismissed an advocate's challenge to a taxation decision, confirming that courts rarely interfere with a taxing officer's assessment of legal costs.

What this practically means

#

Executive summary

#
The applicant, Vincent Mukoya Advocate, filed a reference dated 6th May 2020 under Rule 11(2) and 13 of the Advocates Remuneration Rules, Sections 1A, 1B and 3A and Order 51 Rule 1 of the Civil Procedure Rules, seeking to set aside the decision of the Taxing Officer delivered on 9th April 2020 on the respondent's Bill of Costs dated 30th October 2019, or alternatively to have the bill re-taxed or remitted to a different taxing officer, together with a stay of execution and costs. The applicant contended that the Taxing Master failed to consider the nature of the matter, the amount involved, the interests of the parties and the general conduct of proceedings; wrongly granted fees on a higher scale where the suit was struck out on a legal technicality; assessed instruction fees under the wrong Remuneration Order; and provided for fees not provided for. The respondent maintained that the higher scale applied to a defended matter and that a successful party is entitled to costs as provided under the remuneration order irrespective of how the matter was determined. The court set out the Rule 11 procedure, noting the applicant had not sought reasons before filing the reference. Applying First American Bank of Kenya v Shah, Joreth Ltd v Kigano and Republic v Minister for Agriculture ex parte W'njuguna, the court held that a taxing master's discretion is interfered with only on an error of principle, manifestly excessive fees, or capricious exercise of discretion. Finding the subject matter unascertainable from the pleadings and that the taxing master had placed a fair value on the work involved, the court found no basis for interference and dismissed the application with costs.

Key legal issues

#
01

Principles for interfering with a Taxing Master's decision

Holding

Interference is warranted only on an error of principle, capricious exercise of discretion, or fees so excessive as to amount to an error of principle

Reasoning

The court adopted the principles in First American Bank of Kenya v Shah and Joreth Ltd v Kigano, as restated in Republic v Minister for Agriculture ex parte W'njuguna. The taxing master exercises judicial discretion which includes placing a fair value on the work and responsibility involved where the subject matter cannot be ascertained from the pleadings. None of the grounds established an error of principle.

p. 2
02

Procedure for challenging a taxing master's decision under Rule 11

Holding

Reasons must be sought by notice within 14 days and the reference filed within 14 days of receipt of reasons; here reasons were not sought

Reasoning

The court noted Rule 11 of the Advocates Remuneration Order requires an objector to seek reasons within 14 days and then file a reference within 14 days of receipt. In this case the record showed reasons were not sought and the application was filed instead, though the court proceeded on the merits notwithstanding.

p. 2
03

Applicable scale where suit struck out on a technicality

Holding

A defended matter attracts the higher scale; a successful party is entitled to costs as provided under the remuneration order irrespective of how the matter was determined

Reasoning

The respondent submitted that the higher scale applies where a matter is defended. The court found the taxing master considered the fair value of the work and responsibility involved and declined to disturb the assessment on instruction fees or other items.

p. 2

Legal principles established

#
  • A taxing officer's decision cannot be interfered with unless based on an error of principle or the fee awarded is manifestly excessive
  • Where the subject matter is unascertainable from the pleadings, the taxing master is entitled to use discretion to assess such instruction fee as considered just

Court orders

#
  1. 1.The application dated 6th May 2020 is dismissed with costs

Authorities

#

Legislation

  • Advocates Remuneration OrderRule 11 (1), (2), 13
  • Civil Procedure RulesOrder 51 Rule 1; Sections 1A, 1B and 3A

Cases cited (3)

  • 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
Rule 11(2) and 13 of the Advocates (Remuneration) Rules; Section 1A, 1B and 3A and Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Joseph Musungu Ngachi v Henry Mukhwana Kwenuli & another [2020] KEELC 910 (KLR)", Case Analysis (2020). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/910/eng@2020-10-27

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