Mugweru & Co Advocates v Santaben Premchard Shah & 2others [2021] KEELC 1163 (KLR)
The bottom line
#Kenya's High Court ruled a taxing officer must base an advocate's fee on the instruction fee already fixed in the party-and-party bill, increased by half.
What this practically means
#Executive summary
#Key legal issues
#Whether the taxing officer erred in principle in assessing the instruction fees in the advocate-client bill of costs
Yes - she failed to take into account the already taxed party and party bill in the same suit, where instruction fees had been ascertained at Kshs.429,500/=; that figure increased by one-half should have been the basis of the advocate-client instruction fee
The taxing officer stated the value of the subject matter could not be ascertained, yet in the party and party taxation arising from the same suit she had ascertained it from the pleadings and taxed instruction fees at Kshs.429,500/=. Under Otieno, Ragot and Schedule 6 part 5, that ascertained fee increased by one-half should have guided the advocate-client taxation. The failure constituted an error of principle amounting to substantial irregularity.
Whether the court attendance fees and computation of folios were wrongly taxed
No - the taxing officer exercised her discretion judiciously on attendance fees and rightly computed folios at 25 x 3 for item 45
Under paragraph 50 of the Advocates Remuneration Order, where Schedule 6 provides a higher and lower scale, costs are taxed on the lower scale unless the court orders otherwise; no such order existed. On folios, item 44 taxed at Kshs.540/= represented three folios, so item 45 at 25 x 3 was correctly computed.
What remedy follows where a taxing officer has erred in principle
The bill is remitted back to the taxing officer for reassessment; the judge should not re-tax it himself
Following 4MB Mining Ltd, where a judge concludes the taxing officer erred in principle, the normal practice is to remit the bill for reassessment unless the error could not have materially affected the assessment. The court found substantial irregularity and remitted the whole bill.
Legal principles established
#- A judge on a reference will not interfere with a taxing officer's discretion unless the taxing officer erred in principle in assessing the costs
- Once the instruction fee in the party and party costs is ascertained, it becomes the basis of the instruction fee in the advocate-client bill, increased by one-half
- Where a judge finds the taxing officer erred in principle, the normal practice is to remit the bill for reassessment unless the error could not materially have affected the assessment
Court orders
#- 1.The taxation of the advocate-client bill of costs on 13th October 2020 is set aside
- 2.The advocate-client bill of costs dated 9th September 2019 is remitted back to the taxing officer for reassessment
- 3.Each party to bear their own costs of the reference
- Jurisdiction invoked
- Order 11(2) of the Advocates Remuneration Order and Sections 1A, 1B and 3A of the Civil Procedure Act (reference to a judge from taxation by the taxing officer)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mugweru & Co Advocates v Santaben Premchard Shah & 2others [2021] KEELC 1163 (KLR)", Case Analysis (2021). Chamber Summons dated 26th October 2020 (Reference from Taxation, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1163/eng@2021-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.