Joseph Musungu Ngachi v Henry Mukhwana Kwenuli & another [2020] KEELC 910 (KLR)
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
#Key legal issues
#Principles for interfering with a Taxing Master's decision
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
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.
Procedure for challenging a taxing master's decision under Rule 11
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
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.
Applicable scale where suit struck out on a technicality
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
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.
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.The application dated 6th May 2020 is dismissed with costs
- 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.