Muchiri wa Gathoni & Co. Advocates v Richard Mithamo Mugambi [2020] KEELC 1201 (KLR)
The bottom line
#A Kenyan court threw out a lawyer's challenge to taxed fees because it was filed late and raised items never formally objected to.
What this practically means
#Executive summary
#Key legal issues
#Competency of the Reference for being filed out of time under Rule 11
The Reference was incompetent; the reasons were contained in the written ruling of 10th September 2019, so the objector should have filed the Reference within 14 days of the ruling rather than waiting for reasons.
The ruling was delivered on 10th September 2019 and the reasons for taxing item No. 1 were captured in the written ruling. The Applicant's notice of objection was filed in time, but instead of filing the Reference, he waited until 24th October 2019 to request a certified copy. Filing the Reference on 12th November 2019, over 50 days later, without seeking extension of time under Rule 11(4), ran afoul of Rule 11 and rendered the Reference incompetent.
Whether the Taxing Master erred in principle in taxing the instruction fee at Kshs. 124,136/-
No error of principle; the Taxing Master properly exercised her discretion based on the value of the subject matter and there was nothing to show the matter was complex.
The value of the subject matter (Kshs. 21,058,300) was ascertainable from the agreement for sale. The suit was opposed but nothing showed it was complex; the responsibility entrusted to Counsel was ordinary. The Applicant failed to demonstrate that the calculation was erroneous or outside the scale fees, and the Taxing Officer's opinion on the reasonable fee is not to be interfered with lightly.
Getting up fees
Could not be entertained as they were neither in the notice of objection nor in the bill of costs.
Both parties conceded the getting up fee was neither raised in the notice of objection pursuant to Rule 11(1) nor included in the bill of costs dated 11th April 2019 which was the subject of the ruling. Following Paul Imison, a reference is confined to the items notified in writing and including the getting up fee would amount to sneaking in items outside the objection.
Legal principles established
#- Where reasons for taxation on disputed items are already contained in the ruling, there is no need to seek further reasons before filing a reference, which must be filed within 14 days
- A court cannot interfere with a Taxing Officer's discretion unless an error of principle is shown or the fee is manifestly excessive or low
- An objector may pursue a reference only in respect of the items notified in writing in the notice of objection
Court orders
#- 1.The Reference is dismissed with costs
- Jurisdiction invoked
- Rule 11 of the Advocates' Remuneration Order (reference from a Taxing Officer's decision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muchiri wa Gathoni & Co. Advocates v Richard Mithamo Mugambi [2020] KEELC 1201 (KLR)", Case Analysis (2020). Chamber Summons dated 12th November 2019 (Reference against Taxing Master's ruling dated 10th September 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1201/eng@2020-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.