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ELCAllowedNot stated in the excerpt provided· [2021] KEELC 640 (KLR)

Kiambu Murutani Co. Limited v Kamindi Selfridges Supermarket [2021] KEELC 640 (KLR)

Environment and Land Court
30 November 2021
JKJ. G. Kemei
1,214 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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The Defendant's advocate, Jamuel Mwakandana Kiwinga, filed an application dated 15/2/2021 under Order 11(2) of the Advocates Remuneration Order seeking to set aside the Taxing Officer's Ruling of 4th February 2021 on Items 1 and 2 (instruction and getting up fees) of a Bill of Costs dated 26th June 2020, contending that the award of Kshs. 160,000 was manifestly low and failed to consider the Kshs. 800,000 initially charged by former counsel. The Respondent, through Advocate Carol Wanjiru Kimachia, opposed, maintaining that the decree in the main suit was not a money decree, that the suit was injunctive in nature, and that the Taxing Officer properly applied Schedule VI (A)(I) of the Advocates Remuneration Order, 2006. The Respondent alone filed submissions. The Court framed a single issue: whether the Applicant had established a case for interference with the Taxing Officer's decision. Applying the principles in Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board and Arthur v Nyeri Electricity Undertaking, the Court held that interference is warranted only on an error in principle. It found that the value of the subject matter, Kshs. 40,250,000, was ascertainable from the pleadings, and applying Schedule 6 of the 2009 Order computed instruction fees at Kshs. 617,625 and getting up fees at one third thereof, Kshs. 205,875. Holding that the Taxing Master erred in her assessment, the Court allowed the application, set aside the Ruling of 4/2/2021, and ordered each party to bear their own costs.

Key legal issues

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Whether the Taxing Officer's award on instruction and getting up fees (Items 1 and 2) was erroneous and warrants interference

Holding

Yes - the Taxing Master erred in her assessment, applying the wrong remuneration order/scale; the Court re-assessed instruction fees at Kshs. 617,625 based on the value of the subject matter of Kshs. 40,250,000 under Schedule 6 of the 2009 Order and getting up fees at one third thereof.

Reasoning

The suit was filed in 2011 and determined in 2019; the applicable order for instruction fees is the 2006/2009 Remuneration Order and the 2014 Order for services after 2014. Value of the subject matter is drawn from the pleadings - here Kshs. 40,250,000. Applying Schedule 6 yields instruction fees of Kshs. 617,625 and getting up fees of one third, Kshs. 205,875, against which the Taxing Officer's award of Kshs. 160,000 was wrong.

p. 2

Legal principles established

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  • On a reference from taxation, the judge will not interfere with the Taxing Officer's discretion unless the Taxing Officer erred in principle; questions solely of quantum are for the Taxing Officer.
  • The value of the subject matter for taxation is determined from the pleadings, judgment or settlement; if not ascertainable, the Taxing Officer may exercise discretion considering the nature and importance of the cause and other relevant circumstances.
  • Where issues are joined, getting up fees shall be allowed in addition to instruction fee and shall not be less than one third of the instruction fee.

Court orders

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  1. 1.The application is allowed
  2. 2.The decision of the Taxing Master dated 4/2/2021 is set aside
  3. 3.Item No. 1 on instruction fees taxed at Kshs. 617,625/= (as re-assessed by the Court)
  4. 4.Getting up fees assessed at Kshs. 205,875/- (one third of the instruction fee)
  5. 5.Each party to meet their own costs of the application

Authorities

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Legislation

  • Advocates Remuneration OrderOrder 11(2)
  • Advocates Remuneration Order, 2006Schedule VI (A)(I)
  • Advocates Remuneration Order, 2009Schedule 6, Paragraph 1(b) and Paragraph 2
  • Advocates Remuneration Order, 2014Not specified

Cases cited (5)

  • Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board
    NRB CA Civil Appeal No. 220 of 2004 [2005] eKLR
  • Arthur v Nyeri Electricity Undertaking
    [1961] EA 497
  • Joreth Limited v Kigano & Associates
    Civil Appeal No. 66 of 1999
  • KANU National Elections Board & 2 others v Salah Yakub Farah
    [2018] eKLR
  • Sally Mwembu Manyara v S. Nyakundi & Co. Advocates
    [2021] eKLR
Jurisdiction invoked
Reference from a Taxing Officer's Ruling under Order 11(2) of 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 (5)

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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, "Kiambu Murutani Co. Limited v Kamindi Selfridges Supermarket [2021] KEELC 640 (KLR)", Case Analysis (2021). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/640/eng@2021-11-30

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