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ELCPartially AllowedMiscellaneous ELC Cause No. 114 of 2018· [2020] KEELC 1349 (KLR)

Mwagambo & Okonjo Advocates v Minister for Public Works, Roads & Transport, County Government of Kajiado & another [2020] KEELC 1349 (KLR)

Environment and Land Court
17 September 2020
COChristine Ochieng
1,460 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kajiado court confirmed lawyers' fees are based on the amount actually awarded in judgment, not inflated unproven claims, but allowed four overlooked billing items.

What this practically means

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Executive summary

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This was a reference by Mwagambo & Okonjo Advocates under Rule 11(2) of the Advocates Remuneration Order and Sections 48 and 51 of the Advocates Act, challenging the Deputy Registrar's taxation ruling of 16th July 2018 on the firm's Bill of Costs in Miscellaneous ELC Cause No. 114 of 2018. The applicant, who had acted for parties awarded Kshs. 10,000,000 against the respondents, contended that the taxing master misdirected himself by fixing instruction fees of Kshs. 300,000 without reference to the Kshs. 258,000,000 special damages pleaded in the Plaint, and by failing to award items 5, 21, 27 and 32, including process server's expenses and registry attendances. The respondents maintained the taxation followed Schedule VI of the Remuneration Order and that no error of principle was established. Relying on Joreth Ltd v Kigano & Associates and Republic v Ministry of Agriculture ex parte W'Njuguna, the court held that the value of the subject matter for taxation derives from the pleadings, judgment or settlement; since the Kshs. 258,000,000 claimed as special damages was unproved and disregarded in the underlying judgment, the taxing officer did not err in basing instruction fees on the judgment. However, the court found the taxing officer erred in principle in failing to award items 5, 21, 27 and 32, which the Remuneration Order permits. The reference was partially allowed and those items remitted for fresh assessment, with costs of the reference to the applicant. Judgment delivered at Kajiado on 17th September 2020 by Christine Ochieng, J.

Key legal issues

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01

Whether the taxing master erred in principle in assessing instruction fees based on the judgment amount rather than the pleaded value of the subject matter

Holding

No error of principle; instruction fees determination upheld

Reasoning

Schedule 6 of the Advocates (Remuneration) (Amendment) Order, 2014 provides that the value of the subject matter is determined from the pleadings, judgment or settlement. Although the Plaint pleaded special damages of Kshs. 258,000,000, the court in the underlying suit awarded only Kshs. 10,000,000, disregarding the unproved claim. Special damages must be proved, so the taxing officer rightly based fees on the judgment. Associating with Joreth Ltd v Kigano and the ex parte W'Njuguna authorities, the court upheld the instruction fees.

p. 2
02

Whether the taxing officer erred in failing to award items 5, 21, 27 and 32 of the Bill of Costs

Holding

Yes, the taxing officer erred in principle by failing to award these items

Reasoning

The Advocates Remuneration Order 2014 allows for these items, including process server's expenses and attendances at the registry to file court documents. The taxing officer's omission to consider them amounted to an error of principle, warranting remission of those items for fresh assessment.

p. 2

Legal principles established

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  • The value of the subject matter for taxation of instruction fees is determined from the pleadings, judgment or settlement; where special damages pleaded are not proved or awarded, the taxing officer may properly base fees on the judgment
  • A court may only interfere with a taxing officer's decision where it is founded on an error of principle or the fee is manifestly excessive

Court orders

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  1. 1.Reference partially allowed
  2. 2.Party and Party Bill of Costs remitted to the Taxing Officer for fresh assessment of items 5, 21, 27 and 32 only
  3. 3.Costs of the reference awarded to the Applicant

Authorities

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Legislation

  • Advocates Remuneration OrderRule 11(2)
  • Advocates ActSections 48 and 51
  • Advocates (Remuneration) (Amendment) Order, 2014Schedule 6

Cases cited (8)

  • KTK Advocates V Baringo County Government
    (2017) eKLR
  • Joreth Ltd Vs Kigano & Assoc
    Civil Appeal No. 66 of 1999; [2002] eKLR
  • Sammy Some Kosgei V Grace Jelel Boit
    (2014) eKLR
  • Masore Nyangau & Co. Advocates V Kensalt Limited
    (2019) eKLR
  • Orion East African Ltd V Permanent Secretary of Agriculture & Another
    (2013) eKLR
  • Moronge & Company Advocates V Kenya Airports Authority
    (2012) eKLR
  • Premchand Raich and Limited Vs Quarry Services of East Africa Limited
    (1972) EA 162
  • Republic Vs Minister for Agriculture & 2 others ex parte Samuel Muchiri W/Njuguna & 6 Others
    (2006) eKLR
Jurisdiction invoked
Rule 11(2) of the Advocates Remuneration Order 1962 and Sections 48 and 51 of the Advocates Act (reference against 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, "Mwagambo & Okonjo Advocates v Minister for Public Works, Roads & Transport, County Government of Kajiado & another [2020] KEELC 1349 (KLR)", Case Analysis (2020). Miscellaneous ELC Cause No. 114 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1349/eng@2020-09-17

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