Wamaasa, Masese, Nyamwange & Co. Advocates v Samuel Kibowen Towett & 2 others [2021] KEELC 1563 (KLR)
The bottom line
#A Nakuru court refused to reduce a lawyer's Kshs 300,000 instruction fee, confirming judges rarely disturb taxing officers' decisions unless there is clear error.
What this practically means
#Executive summary
#Key legal issues
#Whether the taxing master erred in principle in taxing instruction fees at Kshs. 300,000/= where the value of the subject matter could not be ascertained
The taxing officer correctly applied Schedule 6A of the Advocates (Remuneration) Order, 2014 and exercised her discretion on relevant considerations; no error of principle and not excessive
The taxing officer found the value of the subject properties unascertainable from the pleadings and judgment, considered the work done and time taken, gave reasons, and adopted the minimum fee basis in Schedule 6A with discretion to award Kshs. 300,000/=. Following Joreth Ltd and Kipkorir, Titoo & Kiara, a judge should not disturb such discretion absent an error of principle or manifest excess, neither of which was demonstrated.
Whether items 2, 3, 34b and 35 of the bill were correctly taxed
All were correctly taxed: item 2 rightly increased by half; item 3 VAT at 16% of instruction fees; item 34b getting-up fees at one-third of instruction fees; item 35 at the lower scale attendance rate
Getting-up fees under Paragraph 2 of Schedule 6A are one-third of instruction fees, which on Kshs. 300,000/= gives Kshs. 100,000/= as taxed. VAT at 16% of Kshs. 300,000/= is Kshs. 72,000/=. Section 50 of the Advocates Remuneration Order mandates the lower scale where both scales exist, supporting the Kshs. 10,000/= attendance fee under Paragraph 7d.
Legal principles established
#- A judge on a reference will not interfere with a taxing officer's exercise of discretion unless the taxing officer erred in principle or the fee awarded was so manifestly excessive as to justify an inference of an error of principle
- Where the value of the subject matter is not ascertainable, the taxing officer may exercise discretion to assess a just instruction fee
Court orders
#- 1.Chamber Summons application dated 18/8/2021 dismissed
- 2.Each party to bear their own costs of the reference
- Jurisdiction invoked
- Reference against a taxing master's decision under the Advocates (Remuneration) Order; Section 50 of the Advocates Remuneration Order and Schedule 6A
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wamaasa, Masese, Nyamwange & Co. Advocates v Samuel Kibowen Towett & 2 others [2021] KEELC 1563 (KLR)", Case Analysis (2021). Chamber Summons application dated 18/08/2021 (arising from ELC No. 200 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1563/eng@2021-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.