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ELCPartially AllowedApplication dated 5th October 2020 (reference from Taxing Officer's ruling dated 21/9/2020; bill of costs dated 26/2/2020)· [2021] KEELC 2219 (KLR)

Anthony Burugu & Co. Advocates v Electro Watts Limited [2021] KEELC 2219 (KLR)

High Court of Kenya
9 August 2021
1,634 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 that incomplete conveyancing work must be taxed under Schedule 1 of the Advocates Remuneration Order, not Schedule 5.

What this practically means

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Executive summary

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This ruling by K. Bor J of the High Court at Nairobi, delivered virtually on 9th August 2021, determines an advocate's reference dated 5th October 2020 seeking to vary or set aside the Taxing Officer's ruling of 21st September 2020 on items 1, 2 and 3 of a bill of costs dated 26th February 2020. The advocate, Anthony Burugu, had acted for Electro Watts Limited, the purchaser, in a conveyance of LR No. 209/12817 for Kshs. 75,000,000/= with the African Centre for Women and Information and Communications Technology (ACWICT), preparing the sale agreement and an addendum. The Taxing Officer, finding the conveyance incomplete, taxed instruction fees under Schedule 5 part 2 of the Advocates Remuneration Order at Kshs. 250,000/=. The court, applying First American Bank of Kenya v Shah and following Kimani Richu & Associates Advocates v Centurion Holdings Limited, held that incomplete non-contentious conveyancing services fall under Schedule 1, and that the Taxing Officer erred in principle by applying Schedule V. On item 2, the court agreed that instruction fees are charged once and should not be duplicated for the same transaction. On item 3, the court held the Taxing Officer properly disallowed unproved disbursements of Kshs. 10,000/=. The reference partially succeeded: the taxation of item 1 was set aside and the bill remitted to another Taxing Officer for taxation of that item; the decisions on items 2 and 3 were not interfered with. Each party was ordered to bear their respective costs of the reference.

Key legal issues

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01

Whether the Taxing Officer applied the wrong schedule of the ARO in taxing item 1 (instruction fees)

Holding

Yes. The conveyance was a non-contentious land sale and purchase matter provided for under Schedule 1 of the ARO; the fact that the transaction was not completed did not justify taxation under Schedule V. The Taxing Officer erred in principle.

Reasoning

The court held that the services rendered were non-contentious, and the fees for non-contentious matters are provided for under Schedule 1 of the ARO. Schedule V applies only where no remuneration is provided for in Schedule 1. Following Kimani Richu & Associates Advocates v Centurion Holdings Limited, taxing an incomplete conveyance under Schedule 1 requires taking into account the extent of the advocate's services and what remained to be done to complete the conveyance.

p. 2
02

Whether item 2 (addendum instruction fees) was properly taxed

Holding

Yes. Instruction fees for the same transaction should not be charged twice; the addendum related to the same instructions already covered.

Reasoning

The court agreed with the Respondent's submission that instruction fees are charged once and should not be duplicated for the same transaction. The item concerned instructions to draw an addendum to the same agreement of sale, so the Taxing Officer's decision on that item was left undisturbed.

p. 2
03

Whether the Taxing Officer erred in disallowing the Kshs. 10,000/= disbursements on item 3

Holding

No. The disallowance was a proper exercise of discretion because no proof of the actual expenses was provided.

Reasoning

The Applicant claimed printing, photocopying, email and telephone expenses but did not avail documents proving them. The Taxing Officer declined to allow the item for lack of proof, and the court found she exercised her discretion properly. The decision on item 3 was not interfered with.

p. 2

Legal principles established

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  • Schedule V of the Advocates Remuneration Order only applies to services in non-contentious matters for which no remuneration is provided in Schedule 1; incomplete conveyancing services must be taxed under Schedule 1, taking into account the extent of the advocate's services and what remained to be done
  • A judge interferes with a Taxing Officer's exercise of discretion where the decision was based on an error of principle or where the fee awarded was manifestly excessive or low as to justify an inference of error of principle
  • Disbursements must be proved by documentation; a Taxing Officer acts properly in disallowing unproved expenses

Court orders

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  1. 1.The Taxing Officer's decision in the ruling dated 21/9/2020 taxing item number 1 on instruction fees at Kshs 250,000/= is set aside
  2. 2.The bill of costs dated 26/2/2020 is remitted to another Taxing Officer of the court for taxation of item number 1
  3. 3.Each party shall meet their respective costs of the reference

Authorities

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Legislation

  • Advocates Remuneration OrderSchedule 1 (Schedule I)
  • Advocates Remuneration OrderSchedule 5 (Schedule V) parts 1 and 2

Cases cited (5)

  • Kimani Richu & Associates Advocates v Centurion Holdings Limited
    [2018] eKLR
  • Nyangito & Co. Advocates v Doinyo Lessos Creameries Ltd
    [2014] eKLR
  • Chokaa & Company Advocates v Deposit Protection Fund
    [2007] eKLR
  • Njeri Kariuki Advocate v Mary Wamaitha Kaittany
    [2019] eKLR
  • First American Bank of Kenya v Shah and Others
    [2002] 1 EA 64
On appeal from
Taxing Officer of the High Court
Taxing Officer's ruling dated 21/9/2020 on bill of costs dated 26/2/2020
Jurisdiction invoked
Inherent jurisdiction of the High Court to vary or set aside a Taxing Officer's ruling on a reference under the Advocates Remuneration Order, 2009/2014

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, "Anthony Burugu & Co. Advocates v Electro Watts Limited [2021] KEELC 2219 (KLR)", Case Analysis (2021). Application dated 5th October 2020 (reference from Taxing Officer's ruling dated 21/9/2020; bill of costs dated 26/2/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2219/eng@2021-08-09

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