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ELCDismissedChamber Summons application dated 19th December, 2019· [2021] KEELC 1812 (KLR)

Philip Saoina & 6 others v Nasser Abdulhamid Ahmed & 2 others [2021] KEELC 1812 (KLR)

High Court of Kenya
24 September 2021
1,666 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court upheld a Taxing Master's decision to reduce legal fees, confirming courts only intervene where a taxing officer makes a clear error of principle.

What this practically means

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Executive summary

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This was a reference by way of a Chamber Summons application dated 19th December, 2019, brought under section 11(2) of the Advocates Remuneration Order, seeking to set aside the Taxing Master's ruling of 25th November, 2019 taxing the 1st Respondent's Party and Party Bill of Costs dated 9th April, 2019 at Kshs. 2,114,184.72. The Applicants, through their advocate Kelvin Mogeni, contended that the instruction fee of Kshs. 1,000,000 (taxed down from Kshs. 4,860,000 on item one) was arbitrary and that the Taxing Master misapprehended and misdirected himself. The 1st Respondent, through his advocate Jacinta Wangeci Wang'ombe, opposed the application, maintaining that the Taxing Master properly exercised his discretion, that the Applicants had not contested any items in the Bill despite being given the opportunity to file submissions, and that no error in principle had been identified. The court framed one issue: whether the Taxing Master's decision should be set aside. Applying the principles in Premchand Raichand Ltd v Quarry Services of East Africa Ltd and the test in Republic v Ministry of Agriculture ex parte Muchiri W'Njuguna, the court held that the Taxing Master gave reasons, declined to rely on a valuation report prepared at the 1st Respondent's instance without the Applicants' participation, and arrived at a non-arbitrary figure. The Applicants also identified no other erroneous line item. The reference was dismissed with costs to the 1st Respondent.

Key legal issues

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01

Whether the Taxing Master's taxation of the instruction fee at Kshs. 1,000,000 (taxing off Kshs. 3,860,000 from the Kshs. 4,860,000 billed) was arbitrary or based on an error of principle

Holding

The Taxing Master's decision was not arbitrary; he gave reasons, declined to rely on a unilateral valuation report, and exercised his discretion properly, so the court would not interfere

Reasoning

The court applied the Premchand Raichand principles and the test in Republic v Ministry of Agriculture ex parte Muchiri W'Njuguna that interference is only warranted on an error of principle or where the fee is manifestly excessive. The Taxing Master expressly gave reasons, refused to rely on the valuation report prepared at the 1st Respondent's instance without the Applicants' participation, and considered the work undertaken by counsel. The Applicants also failed to identify any error in principle or contest any other line item in the Bill of Costs.

p. 3
02

Whether the Applicants identified any other item in the Bill of Costs warranting interference

Holding

No; apart from the instruction fee, the Applicants identified no other line item where the Taxing Master erred, and the court would not interfere with those items

Reasoning

The court noted that the Applicants' complaint was confined to the amount taxed as instruction fees. Having failed to highlight any other line item where the Taxing Master allegedly erred in arriving at his decision, the court declined to interfere with the rest of the taxation, reinforcing the burden on a party seeking to set aside a taxing officer's decision to demonstrate an error of principle.

p. 3

Legal principles established

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  • A court cannot interfere with a taxing officer's decision on taxation 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 that it was based on an error of principle
  • The value of the subject matter of a suit for purposes of taxation of a bill of costs ought to be determined from the pleadings, judgment or settlement; if not so ascertainable, the taxing officer may use his discretion to assess such instruction fee as he considers just

Court orders

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  1. 1.The reference is dismissed with costs to the 1st Respondent

Authorities

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Legislation

  • Advocates Remuneration OrderSection 11(2)
  • Advocates Remuneration Order 2014Schedule 6

Cases cited (9)

  • Reese Vs Alberta
  • Opa Pharmacy Vs House & Mcgeorge Ltd
    Kampala HCMA No.13 of 1970 (HCU) (1972) EA 233
  • Premchand Raichand Ltd & Another Vs Quarry Services of East Africa Ltd & Another
    (1972) EA 162
  • KANU National Elections Board & 2 Others V Salah Yakub Farah
    (2018) eKLR
  • Arthur Vs Nyeri Electricity Undertaking
    (1961) EA 492
  • Steel Construction & Petroleum Engineering (EA) Ltd Vs Uganda Sugar Factory Limited
    (1970) EA 141
  • First American Bank of Kenya Vs Shah & Others
    (2002) 1 EA 64
  • Joreth Limited V Kigano & Associates
    [2002] eKLR
  • Republic v Ministry of Agriculture and 2 others: Exparte Muchiri W'Njuguna & others
    (2006) eKLR
Jurisdiction invoked
Section 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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Cite this brief

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Cite this brief

Caselaw, "Philip Saoina & 6 others v Nasser Abdulhamid Ahmed & 2 others [2021] KEELC 1812 (KLR)", Case Analysis (2021). Chamber Summons application dated 19th December, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1812/eng@2021-09-24

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