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ELCDismissedChamber Summons dated 25th October 2019· [2020] KEELC 3421 (KLR)

Manyonge Wanyama and Associates Advocates v County Government of Nyeri & another [2020] KEELC 3421 (KLR)

Environment and Land Court
5 March 2020
4,241 words in judgment
View original judgmentRead on Kenya Law Watch case
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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 way of Chamber Summonss dated 25th October 2019 under Section 44 of the Advocates Act and Paragraph 11 of the Advocates Remuneration Order, by Wanyama & Co. Advocates (applicant) against the taxing master's ruling of 2nd October 2019 taxing their advocate-client bill of costs against the Kenya Rural Roads Authority. The applicant sought setting aside of the ruling and the Certificate of Costs dated 22nd October 2019, and reassessment, principally on instruction fees and getting up fees, contending the taxing master erred in principle by citing non-existent paragraph 1(k) of Schedule 6 and by ignoring the complexity and importance of the underlying land suit over parcels Thegenge/Karia/732 and 733, in which the applicant had defended a trespass claim and sought Kshs.4,000,000 in instruction fees. The respondent countered that most items were drawn to scale, that the instruction fee of Kshs.120,000/- was generous under paragraph 1(j)(ii), that no getting up fee was chargeable as the matter was never confirmed for hearing, and that disbursements were unsupported by receipts. M.C. Oundo J, applying First American Bank of Kenya v Shah, Premchand Raichand, Arthur v Nyeri Electricity and Joreth v Kigano, held that the mis-citation of paragraph 1(k) was a curable typographical error under Article 159(2)(d), that the taxing master's discretion could not be faulted, that complexity was not cogently demonstrated, and that the getting up fee at one-third of the instruction fee was in order. The reference was dismissed with costs.

Key legal issues

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01

Whether the taxing master's citation of non-existent paragraph 1(k) of Schedule 6 was an error of principle

Holding

No - it was a typographical error not going to the crux of the matter, curable under Article 159(2)(d); the discretion exercised in awarding Kshs.120,000/- cannot be faulted

Reasoning

The taxing master cited paragraph 1(k) which does not exist in Schedule 6, but the court treated this as a typographical slip that did not affect the substance of the assessment. The taxing master had properly considered that the suit involved defending a claim over two parcels of land, and awarded Kshs.120,000/- within her discretion under paragraph 1(j)(ii). A mere mis-reference of a provision, absent demonstrable effect on the assessment, does not amount to an error of principle justifying interference on a reference.

p. 6
02

Whether the getting up fee (item 2) was properly taxed

Holding

Yes - the matter was not confirmed for hearing, and the fee at 1/3 of the instruction fee was in order

Reasoning

Under Schedule 6 paragraph 2, a getting up fee of not less than one-third of the instruction fee is allowed where issues are joined. The proviso states no fee is chargeable until the case is confirmed for hearing. Since this matter was settled before confirmation of hearing, the getting up fee awarded was appropriate and there was no compelling reason to interfere with that item of the bill.

p. 6
03

Whether the taxing master erred in failing to consider complexity and importance of the matter

Holding

No - complexity was not cogently demonstrated nor placed before the taxing master; the responsibility entrusted to counsel was ordinary

Reasoning

The applicant failed to demonstrate that the matter was complex; the taxing master could only deal with what was placed before her. The court found the nature of the forensic responsibility was ordinary, calling for normal professional diligence. Nothing showed the instruction fee awarded was inadequate or outside the scale fees, so there was no basis for interference with the discretionary award.

p. 5

Legal principles established

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  • A court cannot interfere with a taxing officer's discretion on taxation unless it is shown the decision was based on an error of principle or the fee awarded was manifestly excessive or low
  • Where an error of principle is disclosed, the normal practice is to remit for reassessment
  • A mis-citation of a non-existent provision may be a typographical error curable under Article 159(2)(d) where it does not go to the crux of the decision

Court orders

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  1. 1.The reference (Chamber Summons dated 25th October 2019) is dismissed with costs

Authorities

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Legislation

  • Advocates ActSection 44
  • Advocates Remuneration OrderParagraph 11; Schedule 6 paragraphs 1, 1(j)(ii), 1(k) (non-existent), 2, 7(b); Paragraph 74
  • Civil Procedure ActSection 3A
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (8)

  • Joreth Limited vs Kigano and Associates
    [2002] 1 EA 92
  • Premchand Raichand Limited & Another vs Quarry Services of East Africa Limited and another
    [1972] E.A 162
  • Republic vs Minister of Agriculture & 2 Others ex-parte Samuel Muchiri W'Njuguna and 6 Others
    [2006] eKLR
  • Kipkorir Kiptoo & Kiara Advocates vs Deposite Protection Fund Board
    [2005] 1 KLR 528
  • Gathiga Mwangi & Co Advocates vs Jane Mumbi Kiano
    CA Civil Application No. 179 of 2013 (unreported)
  • First American Bank of Kenya vs. Shah and Others
    [2002] 1 EA 64
  • Arthur vs Nyeri Electricity Undertaking
    [1961] E.A 492
  • Paul Ssemogerere & Olum vs. Attorney General
    Civil Application No.5 of 2001 [unreported]
Jurisdiction invoked
Section 44 of the Advocates Act, Paragraph 11 of the Advocates Remuneration Order and Section 3A of the Civil Procedure Act

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, "Manyonge Wanyama and Associates Advocates v County Government of Nyeri & another [2020] KEELC 3421 (KLR)", Case Analysis (2020). Chamber Summons dated 25th October 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3421/eng@2020-03-05

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