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ELCPartially Allowed· [2020] KEELC 3516 (KLR)

Purity Gathoni Githae & another v Exello Structures Limited & another [2020] KEELC 3516 (KLR)

High Court of Kenya
19 February 2020
2,759 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court threw out a lawyer's fee award because the taxing officer relied on a property value a party supplied, ordering the bill be taxed afresh.

What this practically means

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Executive summary

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The plaintiffs filed a reference under paragraph 11 of the Advocates (Remuneration) Order by chamber summons dated 3/8/2018, seeking to vary or set aside the taxing officer's ruling of 22/7/2014 by which the 2nd defendant's party and party bill of costs was taxed against them at Kshs 708,189. The complaints centred on instruction fees (taxed down from Kshs 2,500,000 to Kshs 500,000) and other contested items. The 2nd defendant filed a preliminary objection seeking to strike out the reference on grounds relating to the supporting affidavit, but prosecuted it with no submissions; the court dismissed it as unargued and unprosecuted. The single question for determination was whether the applicants had met the criteria for interfering with a taxing officer's discretionary decision. The court reiterated the settled test: interference lies only on a clear error of principle, failure to consider a relevant factor, or a manifestly high or low award amounting to injustice. On instruction fees, the court found the taxing officer had failed to state the schedule and scale under which she made the Kshs 500,000 award, and had taken into account the purported value of the suit property of Kshs 40,000,000 proffered by the 2nd defendant, and the probable fee of Kshs 614,000 that value would attract, contrary to the principle in Joreth Limited v Kigano & Associates. These errors went to the root of the entire exercise. The court set aside the entire taxation decision and directed fresh taxation before a different taxing officer. No costs order was made.

Key legal issues

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01

Whether the taxing officer committed errors of principle in assessing instruction fees (item 1)

Holding

Yes - she failed to state the schedule/scale applied and took into account the value of Kshs 40,000,000 proffered by the 2nd defendant and the resultant fee of Kshs 614,000, matters she should not have considered

Reasoning

The taxing officer awarded Kshs 500,000 without stating the applicable schedule or scale, and without indicating whether she accounted for the suit against the 2nd defendant being terminated before trial. She then expressly considered the purported value of Kshs 40,000,000 and the probable fee of Kshs 614,000, contrary to the principle that she should not undertake a valuation or receive a value from a party. These errors went to the root of the entire exercise.

p. 3
02

Whether the preliminary objection against the reference should be upheld

Holding

No - it was dismissed as unargued and unprosecuted

Reasoning

The 2nd defendant put forward no written or oral submissions on the preliminary objection, instead adopting earlier submissions filed before the objection was even lodged. Since the objection was never ventilated, the court dismissed it for lack of merit and proceeded to the substantive reference.

p. 3

Legal principles established

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  • Superior courts do not liberally interfere with a taxing officer's decision; they do so only on a clear error of principle, failure to consider a relevant factor, or where the sum awarded is manifestly high or low as to amount to an injustice
  • Where the value of the subject matter is not ascertainable from the pleadings, the taxing officer may use discretion to assess the instruction fee but must not undertake a valuation of the subject matter or receive a value from a party (Joreth Limited v Kigano & Associates)

Court orders

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  1. 1.Preliminary objection dated 17/9/2018 dismissed for lack of merit
  2. 2.Entire decision of the taxing officer rendered on 22/7/2014 set aside
  3. 3.2nd defendant's bill of costs to be taxed afresh before a different taxing officer of the court

Authorities

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Legislation

  • Advocates (Remuneration) OrderParagraph 11
  • Advocates (Remuneration) OrderRule 17
  • Advocates (Remuneration) OrderSchedule VI
  • Civil Procedure RulesOrder 19 rule 1

Cases cited (4)

  • Joreth Limited v Kigano & Associates
    [2001] 1 E.A 92
  • First American Bank of Kenya v Shah and others
    [2002] 1 EA 64
  • Republic v Minister for Agriculture & 2 Others ex-parte Samuel Muchiri W'njuguna & 6 others
    (2006) eKLR
  • Desai Sarvia & Dallan Advocates v Jambo Biscuits (K) Ltd
    (2014) eKLR
Jurisdiction invoked
Paragraph 11 of the Advocates (Remuneration) Order - reference against a taxing officer's decision

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, "Purity Gathoni Githae & another v Exello Structures Limited & another [2020] KEELC 3516 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3516/eng@2020-02-19

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