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ELCPartially AllowedChamber Summons dated 1st October 2018 (arising from Bill of Costs dated 23rd January 2017; underlying suit Civil Case No. 233 of 2009)· [2020] KEELC 1562 (KLR)

Thomas K’Bahati T/A K’Bahati & Co. Advocates v Janendra Raichand Shah [2020] KEELC 1562 (KLR)

High Court of Kenya at Mombasa
30 July 2020
2,908 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 confirmed that advocates who take over a case midway cannot claim full instruction fees—only payment for the work they actually did.

What this practically means

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Executive summary

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This was a reference by the client (Janendra Raichand Shah) under Rule 11(1) and (2) of the Advocates Remuneration Order against a taxing master's ruling awarding instruction fees of Kshs. 4,689,004 under item 1 of a Bill of Costs dated 23rd January 2017, arising from Civil Case No. 233 of 2009. The applicant, through counsel, argued that the taxing master erred in principle by adopting a subject-matter value of Kshs. 500 million without any valuation report or support from the pleadings, and that the respondent advocate, who took over the matter only on 28th January 2015 via a Notice of Change of Advocates dated 26th January 2015, was not entitled to full instruction fees as though it had drawn the plaint. The respondent opposed, contending that the reference was defective for citing a wrong taxing officer and wrong date, that the applicant lacked audience for non-compliance with a deposit order of 17th September 2018, and that the application was frivolous and an abuse of process. The court rejected the defect argument as a procedural technicality under Article 159(2)(d), restated the First American Bank v Shah principles for interfering with taxation, and held that instruction fees are payable only for work done; the respondent, not having drawn the plaint, was entitled only to work done from 28th January 2015 onwards. The reference was allowed and item 1 remitted to another Deputy Registrar for re-taxation, with each party bearing their own costs.

Key legal issues

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01

Whether the reference was defective for citing a wrong Taxing Master and wrong date

Holding

No - the error was a procedural technicality; the bill in dispute was clearly identified

Reasoning

The respondent argued the reference was incompetent because it referenced a decision by a different taxing officer and a wrong date. The court held, invoking Article 159(2)(d) and the definition of procedural technicalities in Kenya Ports Authority v Kenya Power, that where the Bill of Costs in dispute (dated 23rd January 2017) is clear, such misdescription is a mere technicality that cannot found dismissal of the reference.

p. 3
02

Whether the respondent advocate was entitled to full instruction fees

Holding

No - the respondent only came on record on 28th January 2015 and did not draw the plaint, so only work done from that date is chargeable

Reasoning

The court adopted the principle from Kenyari & Associates v Salama Beach Hotel and First American Bank v Shah that full instruction fees are earned by the advocate who institutes or defends the suit. Since K'Bahati & Company Advocates took over by Notice of Change dated 26th January 2015 (filed 28th January 2015), the respondent could not claim full instruction fees computed from 2011, but only for work done from 28th January 2015 onwards.

p. 4
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The principles on which a court interferes with a taxing officer's decision

Holding

Interference lies where there is an error of principle or the fee is manifestly excessive; the normal practice is remittal to another taxing officer for reassessment

Reasoning

The court restated the First American Bank of Kenya v Shah principles: interference requires an error of principle or manifest excess; relevant factors include the nature and importance of the matter, value of the subject matter, interests of parties, conduct of proceedings and directions of the trial judge; on errors of principle the normal course is remittal unless the error could not materially have affected the assessment.

p. 3

Legal principles established

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  • Instruction fees are only payable to an advocate in respect of work done; the advocate who draws the plaint is entitled to the full instruction fees, and subsequent advocates can only be paid for actual work done
  • Misnaming the taxing officer or citing a wrong date where the bill in dispute is clear is a procedural technicality that cannot justify dismissal, per Article 159(2)(d)

Court orders

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  1. 1.The reference against the decision on taxation is allowed
  2. 2.The Bill of Costs dated 23rd January 2017 is remitted for taxation before any other Deputy Registrar to tax item 1 of the said bill in accordance with the Advocates Remuneration Order, taking into account the guidelines set out in the said Order
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Advocates Remuneration OrderRule 11(1) and (2); Schedule provisions on taxation guidelines

Cases cited (6)

  • David Mining -v- Rebecca Mining
    (2019) eKLR
  • Mwangangi & Company Advocates -v Machakos County
    (2018) eKLR, Misc. Civil Application No. 318 of 2016
  • Joreth Limited -v- Kigano & Associates
    (2002) eKLR
  • Kenyari & Associates -v- Salama Beach Hotel Ltd & 4 Others
    (2014) eKLR
  • First American Bank of Kenya -v- Shah & Another
    (2002) 1 EA 64; HCCC No. 2255 of 2000
  • Kenya Ports Authority -v- Kenya Power & Lighting Co. Ltd
    (2012) eKLR
On appeal from
Deputy Registrar (Taxing Master - D. Wasike)
Ruling on taxation of Bill of Costs dated 23rd January 2017
Jurisdiction invoked
Rule 11(1) and (2) of the Advocates Remuneration Order (reference against taxation decision); Article 159(2)(d) of the Constitution

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, "Thomas K’Bahati T/A K’Bahati & Co. Advocates v Janendra Raichand Shah [2020] KEELC 1562 (KLR)", Case Analysis (2020). Chamber Summons dated 1st October 2018 (arising from Bill of Costs dated 23rd January 2017; underlying suit Civil Case No. 233 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1562/eng@2020-07-30

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