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ELCDismissedChamber Summons dated 12th November 2019 (Reference against Taxing Master's ruling dated 10th September 2019)· [2020] KEELC 1201 (KLR)

Muchiri wa Gathoni & Co. Advocates v Richard Mithamo Mugambi [2020] KEELC 1201 (KLR)

Environment and Land Court
1 October 2020
3,692 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This was a reference by H. S. Mshila Advocate under Rule 11(1) and (2) of the Advocates' Remuneration Order challenging the Taxing Master's (R. Kefa, Deputy Registrar) ruling of 10th September 2019 on a bill of costs dated 11th April 2019. The Applicant sought setting aside of item No. 1 (instruction fee taxed at approximately Kshs. 124,136 against a subject matter valued at Kshs. 21,058,300), an award of getting up fees, and costs. The Respondent opposed on grounds that the reference was filed out of time, that it exceeded the scope of the notice of objection, and that the Taxing Master had properly exercised her discretion. The court framed two issues: competency of the reference under paragraph 11 of the Order, and errors of principle in taxation. On the first, the court held that because the reasons for taxation were contained in the written ruling, the objector should have filed the reference within 14 days of the ruling rather than waiting for further reasons; filing on 12th November 2019, over 50 days after the notice, without seeking extension of time, rendered the reference incompetent. In the alternative, the court found no error of principle: the value of the subject matter was ascertainable from the sale agreement, the matter was opposed but not shown to be complex, and the Taxing Master's discretion could not be faulted. The getting up fee claim failed because it was neither in the notice of objection nor the bill of costs, and could not be sneaked into the reference. The reference was dismissed with costs on 1st October 2020.

Key legal issues

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01

Competency of the Reference for being filed out of time under Rule 11

Holding

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.

Reasoning

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.

p. 3
02

Whether the Taxing Master erred in principle in taxing the instruction fee at Kshs. 124,136/-

Holding

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.

Reasoning

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.

p. 5
03

Getting up fees

Holding

Could not be entertained as they were neither in the notice of objection nor in the bill of costs.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The Reference is dismissed with costs

Authorities

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Legislation

  • Advocates Remuneration OrderRule 11(1), (2), (3), (4); Schedule 6 paragraph 1(j)(ii); paragraph 1(b)
  • Civil Procedure ActSections 1A, 1B, 3A

Cases cited (9)

  • Kinyua Muyaa & Co. Advocates vs Kenya Ports Authority Oensin Scheme & 8 Others
    [2017] eKLR
  • Premchand Raichand Ltd & Another vs Quarry Services E. Africa Ltd
    [1972] E.A 162
  • Paul Imison & Another vs Jodad Investments Limited
    [2014] eKLR
  • Nyangito & Co Advocates vs Doinyo Lessos Creameries Ltd
    [2014] eKLR
  • Ahmednasir Abdikadir & Company Advocates vs National Bank of Kenya Ltd (2)
    [2006] 1 EA
  • First American Bank of Kenya vs Shah and Others
    [2002] 1 EA 64
  • Arthur vs Nyeri Electricity Undertaking
    [1961] E.A 492
  • Joreth Limited vs Kigano and Associates
    [2002] 1 E.A 92
  • Paul Ssemogerere & Olum vs Attorney General - Civil Application No.5 of 2001
    [unreported]
Jurisdiction invoked
Rule 11 of the Advocates' Remuneration Order (reference from a Taxing Officer's decision)

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, "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.