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ELCAllowedNot stated in the excerpt provided· [2021] KEELC 2869 (KLR)

Owiti Otieno & Ragot Adv. v Mumias Sugar Co. Ltd. [2021] KEELC 2869 (KLR)

High Court of Kenya
22 June 2021
NMN.A. Matheka
1,809 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 in Kakamega set aside a taxing master's ruling because she taxed a lawyer's fees under the wrong version of the Remuneration Order, ordering fresh taxation.

What this practically means

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Executive summary

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This was a judge's reference under Rule 11 of the Advocates (Remuneration) Order challenging a taxing master's (Deputy Registrar's) decision of 24th July 2019 on an advocate/client bill of costs dated 18th March 2019. The applicant advocate sought setting aside of the taxation off item 1, Ksh. 57,695,918.00 taxed off item 2 (getting-up fees), and numerous correspondence, travelling and subsistence items, contending the taxing master erred in principle by applying the 2006 Advocates Remuneration Order (Schedule 6A(1)(ii)) on the basis that the suit was filed in 2008, when instructions were in fact given in January 2010, so the 2009 Order (Schedule 6B) applied. The respondent did not defend the reference. The court restated the settled principles from First American Bank of Kenya v Shah and Joreth Ltd v Kigano & Associates that a taxing master's judicial discretion will only be disturbed on proof of an error of principle, manifestly excessive fees, or capricious exercise of discretion, and drew on Republic v Minister for Agriculture ex parte W'njuguna on the discretionary factors in taxation. Finding the taxing master had applied the wrong Remuneration Order, the court held this constituted an error of principle. The court allowed the reference, set aside the taxing master's ruling of 24th July 2019, remitted the bill of costs dated 18th March 2019 to a different taxing master for fresh taxation, and made no order as to costs since the application was undefended.

Key legal issues

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01

Error of principle in choice of Remuneration Order

Holding

The taxing master erred by taxing under the 2006 Order when instructions were given in 2010, requiring the 2009 Order

Reasoning

The court found the taxing master applied Schedule 6A(1)(ii) of the 2006 Order on the basis that the suit was filed in 2008, yet the record showed instructions to the advocate were issued in January 2010. Applying the wrong scale was an error of principle justifying interference.

p. 2
02

Standard for interfering with a taxing master's decision

Holding

Interference is only warranted on error of principle, manifest excessiveness, or capricious exercise of discretion

Reasoning

Relying on First American Bank of Kenya v Shah and Joreth Ltd v Kigano & Associates, the court restated that taxation is a matter of opinion and a judge will not disturb an award merely because it seems too high or too low, but only where an error of principle is demonstrated.

p. 2

Legal principles established

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  • A taxing master's decision may only be interfered with where it is based on an error of principle, the fee is manifestly excessive, or the discretion was exercised capriciously or in abuse of correct principles of law

Court orders

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  1. 1.The Taxing Master's decision on the taxed bill of costs dated 18th March 2019 and ruling delivered on 24th July 2019 is set aside
  2. 2.The bill of costs dated 18th March 2019 is remitted to another Taxing Master for taxation
  3. 3.No order as to costs as the application was undefended

Authorities

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Legislation

  • Advocates (Remuneration) OrderRule 11(1) and (2); Schedule 6A(1)(ii); Schedule 6B

Cases cited (3)

  • First American Bank of Kenya vs Shah and Others
    (2002) EA 64 / (2002) E.A.L.R 64
  • Joreth Ltd vs Kigano and Associates
    (2002) 1 EA 92 / (2002) eKLR
  • Republic vs Minister for Agriculture & 2 Others ex parte Samuel Muchiri W'njuguna
    (2006) eKLR
On appeal from
High Court of Kenya (Deputy Registrar, Taxing Master)
Bill of Costs dated 18th March 2019
Jurisdiction invoked
Rule 11 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, "Owiti Otieno & Ragot Adv. v Mumias Sugar Co. Ltd. [2021] KEELC 2869 (KLR)", Case Analysis (2021). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2869/eng@2021-06-22

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