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ELCDismissedChamber Summons dated 23rd July 2021 (Bill of Costs dated 27th March 2019)· [2021] KEELC 377 (KLR)

Abib & Associates Advocates v Esther Gloria Mwihaki Bell [2021] KEELC 377 (KLR)

Environment and Land Court

3 December 2021

EWE. K. Wabwoto

1,245 words in judgment

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Executive summary

This ruling by the Environment and Land Court at Nairobi (E. K. Wabwoto, J) determines a reference by Edward Kolla Wangila Advocate, the Applicant, against a ruling of Deputy Registrar Hon. Diana Orago delivered on 24th June 2021, in which the Applicant's Bill of Costs dated 27th March 2019 was taxed at Kshs 2,360,000 under Rule 18(f) of the Advocates Remuneration Order. The instructions related to a non-contentious conveyance, preparing an agreement for sale of LR No 209/7153/29 for a purchase price of Kshs 201,000,000, which transaction was not completed. The Applicant sought to have the ruling set aside and the Bill remitted for fresh taxation, arguing the Taxing Officer should have applied Schedule 1, which governs conveyance remuneration, rather than Rule 18(f)/Schedule V. The Respondent, through Mr. Moses Mutanda Advocate, defended the taxation. Adopting the principles in First American Bank of Kenya v Shah, the single issue was whether the Taxing Officer applied the wrong schedule and principles. The judge agreed that the Taxing Officer erred in applying Rule 18(f)/Schedule V instead of Schedule 1. However, bound by the Court of Appeal's decision in Ratemo Oira & Co. Advocates v Magereza Sacco Society Limited, which upheld the same approach on similar facts, the judge invoked stare decisis, declined the relief sought, and dismissed the reference, ordering each party to bear their respective costs.

Key legal issues

Whether the Taxing Officer erred in principle by applying Rule 18(f) and Schedule V of the Advocates Remuneration Order instead of Schedule 1 to a non-completed conveyance

Holding

The court found the Taxing Officer did err in applying Rule 18(f)/Schedule V, but declined to set aside the taxation because it was bound by the Ratemo Oira decision

Reasoning

The court accepted the applicant's argument that Schedule 1 provides specific costing for land sale and purchase services and that the Taxing Officer should have considered the extent of services rendered and what remained to complete the conveyance. However, the Court of Appeal in Ratemo Oira, on materially similar facts, upheld the application of Rule 18(f) and Schedule V to non-completed conveyances. Bound by stare decisis, the judge dismissed the reference despite personally favouring the Schedule 1 approach.

p. 2

Legal principles established

A court cannot interfere with a taxing officer's decision unless it is shown that the decision was based on an error of principle or the fee awarded was manifestly excessive as to justify an inference of an error of principle
Where the conveyance transaction is not completed and the services are non-contentious, Rule 18(f) and Schedule V of the Advocates Remuneration Order apply even where Schedule 1 would otherwise provide the remuneration

Court orders

1.The reference is declined and dismissed
2.Each party to meet their respective costs

Authorities

Legislation

Advocates Remuneration OrderRule 18(f)
Advocates Remuneration OrderSchedule 1
Advocates Remuneration OrderSchedule V

Cases cited (2)

First American Bank of Kenya v Shah and Others
[2002] 1 EA 64
Ratemo Oira & Co. Advocates v Magereza Sacco Society Limited
(2019) eKLR

Jurisdiction invoked: Inherent jurisdiction of the High Court/ELC to interfere with a Taxing Officer's decision on a reference against taxation under the Advocates Remuneration Order

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Cite this brief

Caselaw, "Abib & Associates Advocates v Esther Gloria Mwihaki Bell [2021] KEELC 377 (KLR)", Case Analysis (2021). Chamber Summons dated 23rd July 2021 (Bill of Costs dated 27th March 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/377/eng@2021-12-03

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