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ELCPartially AllowedNot stated in the judgment· [2020] KEELC 1455 (KLR)

Luka Wagana & 2 others v Charles Alexander Kiai & another [2020] KEELC 1455 (KLR)

Environment and Land Court
Invalid Date
MOM. C. Oundo
3,047 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's courts will only accept challenges to advocate-client legal fee decisions if filed through the correct procedure — using the wrong one gets the application thrown out.

What this practically means

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Executive summary

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Before the Environment and Land Court at Nakuru were two applications arising from a Taxing Master's ruling delivered on 9th October 2019. The 1st Defendant, by Notice of Motion under Order 45 Rules 1 and 2 of the Civil Procedure Rules dated 4th November 2019, sought to set aside the ruling and reinstate items taxed off his Bill of Costs. The Plaintiffs, by Chamber Summons under Rule 11(2) of the Advocates (Remuneration) Order dated 22nd November 2019, sought taxation off of items the Taxing Master had allowed as drawn to scale. The Court held that the 1st Defendant's application was incompetent: a challenge to a Taxing Master's decision on an advocate/client bill must be brought by reference under paragraph 11(2) of the Advocates (Remuneration) Order, not by review under the Civil Procedure Rules, the two jurisdictions being mutually exclusive. The oxygen principle and Article 159(2)(d) could not cure the defect, and the application was dismissed. On the Plaintiffs' application, the Court applied the First American Bank of Kenya principles and found the Taxing Master had erred in principle by giving generalized reasons for allowing the impugned items as drawn to scale; sampling showed items 15, 16 and 19 were unsupported by the record. The Court allowed the Plaintiffs' application, set aside the taxation of the 1st Defendant's Bill of Costs dated 28th May 2019 and all consequential orders, remitted the bill to the Taxing Master for fresh taxation of the objected items, and ordered each party to bear its own costs. Judgment was delivered at Nakuru on 6th August 2020 by M.C. Oundo, Environment and Land Judge.

Key legal issues

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01

Competency of a review application under Order 45 CPR against a Taxing Master's decision

Holding

Incompetent; the Advocates (Remuneration) Order provides the exclusive procedure by way of reference under paragraph 11(2).

Reasoning

The Taxing Master exercising taxation of an advocate/client bill acts under special jurisdiction conferred by the Advocates (Remuneration) Order, not as Deputy Registrar under the Civil Procedure Act/Rules. The two roles and their procedures are separate, distinct and mutually exclusive, so one cannot be substituted for the other. The oxygen principle and Article 159(2)(d) do not cure such a jurisdictional defect.

p. 2
02

Whether the Taxing Master erred in principle in allowing the impugned items as drawn to scale

Holding

Yes; the Taxing Master gave generalized reasons, failed to identify the scale applied, and allowed items for which no entitlement was shown on the record.

Reasoning

The Court sampled items 15, 16 and 19 and found that costs were awarded despite the record not supporting them: on item 15 the Plaintiffs had already been awarded the day's costs; no Notice of Appointment of M/S Macharia Advocate appeared for item 16; and item 19 related to photocopies made before the suit was even filed. Such generalized reasoning and awards unsupported by the record showed the Taxing Master followed a wrong principle.

p. 4

Legal principles established

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  • An order of the Taxing Master on an advocate/client bill of costs can only be challenged before a Judge by way of a reference initiated by chamber summons under paragraph 11(2) of the Advocates (Remuneration) Order, and not by way of review under Order 45 of the Civil Procedure Rules.
  • A court cannot interfere with the Taxing Master's discretion unless it is shown the decision was based on an error of principle or the fee awarded was manifestly excessive or low.

Court orders

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  1. 1.Dismissal of the 1st Defendant's Notice of Motion dated 4th November 2019 as incompetent
  2. 2.The taxation of the 1st Defendant's Bill of Costs dated 28th May 2019 and all consequential orders set aside
  3. 3.The said Bill of Costs remitted back to the Taxing Master to be taxed afresh on the items objected to by the Plaintiffs
  4. 4.Each party to bear its own costs of the Plaintiffs' Chamber Summons dated 22nd November 2019

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rules 1 and 2
  • Advocates (Remuneration) OrderRule 11(2); Rule 2(i); Paragraph 11; Rule 74(1)(b); Section 74; Section 74A(1)(b)
  • Advocates ActNot specified
  • Civil Procedure ActSection 80
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (9)

  • Hasham Kara vs Abdul Mohamed Hussein Kaamali
    [1946-47] Vol XXII KLR
  • Hezekiel Oira T/A H. Oira Advocate v Kenya Broadcasting Corporation
    [2015] eKLR
  • Machira & Company Advocate vs Arthur K. Magugu
    (2012) eKLR
  • Abok James Odera T/A A.J. Odera & Associates vs John Patrick Machira T/A Machira & Company Advocates
    (2013) eKLR
  • Kariuki Networks Ltd & Another vs Daly Figgis Advocates
    Civil Application No. Nai 293 of 2009
  • First American Bank of Kenya vs Shah & Others
    [2002] 1 EA 64
  • Premchand Raichand Limited & Another vs Quarry Services of East Africa Limited and Another
    [1972] E.A 162
  • Arthur vs Nyeri Electricity Undertaking
    [1961] E.A 492
  • Joreth Limited vs Kigano and Associates
    [2002] 1 E.A 92
Jurisdiction invoked
References under paragraph 11(2) of the Advocates (Remuneration) Order from the Taxing Master's ruling

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Luka Wagana & 2 others v Charles Alexander Kiai & another [2020] KEELC 1455 (KLR)", Case Analysis (). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1455/eng@2020-08-06

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