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ELCPartially AllowedNot stated in judgment (references against taxing master's decision; suit Mombasa ELC No. 81 of 2016 (OS) underlying)· [2020] KEELC 2709 (KLR)

Ambwere T.S & Associates v Frank Nyambu Wafukwa & Others [2020] KEELC 2709 (KLR)

Environment and Land Court
26 February 2020
2,812 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This was a reference by an advocate against a Deputy Registrar's taxation of an advocate/client bill of costs, with a cross-reference by the respondents, arising from instructions to file Mombasa ELC No. 81 of 2016 (OS), an adverse possession claim over land parcel Mainland North/Section 1/413 by 37 respondents. The advocate sought instruction fees of Kshs. 1,500,000/= and getting up fees of Kshs. 500,000/= within a total bill of Kshs. 3,539,558/=. The respondents claimed fees had been agreed at Kshs. 285,000/= and paid, but the taxing master found no retainer agreement, awarded Kshs. 500,000/= instruction fees based on her discretion under Schedule VI, and refused getting up fees. In the course of taxation the parties agreed to value the property, which was valued at Kshs. 26,200,000/=, but the taxing master did not use the valuation. The court held that instruction fees are static and earned once originating process is filed, so the suit's non-progression to hearing was irrelevant, and that no fee agreement was proved. Relying on its earlier decision in Masore Nyang'au vs Kensalt Limited, the court held the taxing master erred in not pegging instruction fees on the value of the subject matter. The court recomputed instruction fees at Kshs. 889,500/= (including the one-half increase for advocate-client fees), subject to 16% VAT and deduction of Kshs. 235,000/= actually paid per receipts, declined to enhance fees under the proviso, upheld refusal of getting up fees, and awarded the applicant costs of Kshs. 10,000/= plus the Kshs. 60,000/= valuation fee subject to a receipt.

Key legal issues

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01

Whether instruction fees depend on the stage the suit has reached

Holding

No; instruction fees are static and earned once the advocate is instructed and files originating process.

Reasoning

Following Joreth vs Kigano & Associates, the Court of Appeal held instruction fee is an independent and static item charged once only and not affected by the stage the suit has reached. The taxing officer's alleged failure to consider the suit's inconclusive stage therefore could not fault the taxation.

p. 2
02

Whether the taxing master erred in not pegging instruction fees on the value of the subject matter

Holding

Yes; having agreed to a valuation for taxation purposes, the taxing officer should have used the value of Kshs. 26,200,000/= instead of falling back on discretion.

Reasoning

The court relied on its earlier decision in Masore Nyang'au & Company Advocates vs Kensalt Limited, holding Schedule 6(1)(b) applies where value is determinable from pleadings; where not, the taxing officer may call for evidence, including a valuation report, under Rule 13. The parties had agreed to valuation, so disregarding it was erroneous.

p. 2
03

Whether there was an agreed fee of Kshs. 285,000/= fully paid

Holding

No; no retainer agreement was presented, and the receipts totalled Kshs. 235,000/= not Kshs. 275,000/= as recorded by the taxing officer.

Reasoning

The taxing officer found no retainer agreement, which the court could not fault. The court recalculated the receipts totalling Kshs. 235,000/= to be offset against the taxed fees.

p. 2
04

Whether the proviso to Schedule 6(1) justified higher fees

Holding

No; the adverse possession case was not complex and the number of parties did not demonstrate extra burden.

Reasoning

The proviso allows consideration of the nature and importance of the matter and other relevant circumstances to ensure adequate remuneration, but reasons must be stated; here the court was not persuaded to exercise that discretion.

p. 3

Legal principles established

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  • Instruction fees are static, charged once, and do not depend on the stage the suit has reached; full fees are earned once originating process is filed.
  • Where the value of the subject matter is not in the pleadings, the taxing officer may have the subject matter valued and base taxation on that value.
  • Advocate-client fees are increased by one-half over party-and-party fees under Part B of Schedule 6.

Court orders

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  1. 1.Reference allowed on instruction fees; instruction fees recomputed at Kshs. 889,500/= based on value of subject matter of Kshs. 26,200,000/=
  2. 2.Taxation on other items remains undisturbed, including refusal of getting up fees
  3. 3.Amount payable subject to VAT at 16% (Kshs. 142,320/=) and reduced by Kshs. 235,000/= already paid by respondents
  4. 4.Applicant awarded Kshs. 10,000/= costs of the reference payable by respondents
  5. 5.Applicant entitled to recover Kshs. 60,000/= valuation fee from respondents subject to a receipt being tabled

Authorities

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Legislation

  • Advocates Remuneration OrderSchedule VI / Schedule 6, paragraph (1)(b) and Part B; proviso to Schedule 6(1)
  • Advocates' Remuneration OrderRule 13

Cases cited (2)

  • Joreth vs Kigano & Associates
    Civil Appeal No. 66 of 1999 (2002) eKLR
  • Masore Nyang'au & Company Advocates vs Kensalt Limited
    Nakuru ELC Miscellaneous Application No. 196 of 2015 (2019) eKLR
On appeal from
Deputy Registrar (Taxing Master)
Taxation of advocate/client bill of costs in respect of Mombasa ELC No. 81 of 2016 (OS)
Jurisdiction invoked
Reference against taxation by the taxing master under the Advocates Remuneration Order

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Ambwere T.S & Associates v Frank Nyambu Wafukwa & Others [2020] KEELC 2709 (KLR)", Case Analysis (2020). Not stated in judgment (references against taxing master's decision; suit Mombasa ELC No. 81 of 2016 (OS) underlying). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2709/eng@2020-02-26

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