Ambwere T.S & Associates v Frank Nyambu Wafukwa & Others [2020] KEELC 2709 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether instruction fees depend on the stage the suit has reached
No; instruction fees are static and earned once the advocate is instructed and files originating process.
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.
Whether the taxing master erred in not pegging instruction fees on the value of the subject matter
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.
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.
Whether there was an agreed fee of Kshs. 285,000/= fully paid
No; no retainer agreement was presented, and the receipts totalled Kshs. 235,000/= not Kshs. 275,000/= as recorded by the taxing officer.
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.
Whether the proviso to Schedule 6(1) justified higher fees
No; the adverse possession case was not complex and the number of parties did not demonstrate extra burden.
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.
Legal principles established
#- 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
#- 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.Taxation on other items remains undisturbed, including refusal of getting up fees
- 3.Amount payable subject to VAT at 16% (Kshs. 142,320/=) and reduced by Kshs. 235,000/= already paid by respondents
- 4.Applicant awarded Kshs. 10,000/= costs of the reference payable by respondents
- 5.Applicant entitled to recover Kshs. 60,000/= valuation fee from respondents subject to a receipt being tabled
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#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.