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ELCPartially AllowedChamber Summons dated 26th October 2020 (Reference from Taxation, Nakuru)· [2021] KEELC 1163 (KLR)

Mugweru & Co Advocates v Santaben Premchard Shah & 2others [2021] KEELC 1163 (KLR)

High Court of Kenya
4 November 2021
2,485 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 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

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Executive summary

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This was a reference to a judge under Order 11(2) of the Advocates Remuneration Order challenging the Deputy Registrar's taxation of an advocate-client bill of costs dated 9th September 2019, taxed at Kshs.370,189.50 on 13th October 2020 against a claimed Kshs.1,072,579. The applicant advocate contended the taxing officer erred by assessing instruction fees at Kshs.100,000/= and getting up fees at Kshs.33,333/= despite having, in the party and party taxation of the same suit (Nakuru ELC No. 246 of 2015), ascertained the value of the subject matter from the pleadings and taxed instruction fees at Kshs.429,500/= on 2nd October 2018. The respondents opposed, arguing the taxation was judicious, that attendances and folios were correctly assessed, that copies and correspondence lacked vouchers, that they had paid a Kshs.100,000/= deposit and the taxed amount, and that the applicant was not a legal entity capable of suing or being sued. Applying Kipkorir, Titoo & Kiara, Joreth Ltd, Otieno, Ragot and 4MB Mining, the court held that once the instruction fee in a party and party bill is ascertained it becomes the basis of the advocate-client instruction fee, increased by one-half under Schedule 6 part 5. The taxing officer's failure to apply that ascertained figure was an error of principle constituting substantial irregularity. However, challenges to court attendance fees and folio computation failed, the discretion there being judiciously exercised. The court set aside the taxation of 13th October 2020 and remitted the entire bill to the taxing officer for reassessment, with each party bearing their own costs of the reference.

Key legal issues

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01

Whether the taxing officer erred in principle in assessing the instruction fees in the advocate-client bill of costs

Holding

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

Reasoning

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.

p. 3
02

Whether the court attendance fees and computation of folios were wrongly taxed

Holding

No - the taxing officer exercised her discretion judiciously on attendance fees and rightly computed folios at 25 x 3 for item 45

Reasoning

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.

p. 3
03

What remedy follows where a taxing officer has erred in principle

Holding

The bill is remitted back to the taxing officer for reassessment; the judge should not re-tax it himself

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The taxation of the advocate-client bill of costs on 13th October 2020 is set aside
  2. 2.The advocate-client bill of costs dated 9th September 2019 is remitted back to the taxing officer for reassessment
  3. 3.Each party to bear their own costs of the reference

Authorities

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Legislation

  • Advocates Remuneration OrderOrder 11(2)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Advocates Remuneration OrderSchedule 6, paragraphs 1, 2, 4d, 5, 6, 8, part 5 and paragraph 50, 50A, 22, 58
  • Advocates Remuneration OrderSchedules of 1997, 2006 and 2014 (referred to in taxing officer's ruling)

Cases cited (7)

  • First American Bank of Kenya Ltd vs Gulab P Shah & 2 Others
    [2002] IEA 64 page 70-71
  • KANU National Elections Board & 2 Others v Salah Yakub Farah
    [2018] eKLR
  • Manyonge Wanyama & Associate v County Government of Kirinyaga
    [2019] eKLR
  • Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board
    NRB CA Civil Appeal No. 220 of 2004 [2005] eKLR
  • Joreth Ltd v Kigano & Associates
    NRB CA Civil Appeal No. 66 of 1999 [2002] eKLR
  • Otieno, Ragot & Company Advocates v Kenya Airports Authority
    [2021] eKLR
  • 4MB Mining Limited C/O Ministry of Mining, Juba Republic of South Sudan Vs Misnak International (UK) Limited; Total Link Logistics & 2 others (Interested Parties)
    [2021] eKLR
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

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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, "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.