Joan Nyokabi Ndungu v Stanley Mutimi Njogu & 2 others [2021] KEELC 2966 (KLR)
The bottom line
#A Kenyan court overturned a taxing master's fee award because she used the wrong fee schedule, a disputed sale price, and faulty arithmetic.
What this practically means
#Executive summary
#Key legal issues
#Applicable Remuneration Order
The taxing master erred by applying the Advocates Remuneration Order 2014; the suit was filed in 2005 and the applicable order is the Advocates Remuneration (Amendment) Order 1997
The Deputy Registrar reasoned that since the suit was transferred to the Thika ELC in 2017, the 2014 Order applied. The Court held that although transferred in 2017, the suit was initially filed in 2005, and the applicable Remuneration Order is that which was operational at the time of filing suit, following N. O. Sumba & Co Advocates v Piero Cannobio.
Value of the suit property
Basing the value of the suit property on a sale agreement found to be fraudulent was an error; the taxing master must consider all relevant circumstances where the defendants gave no other proof of value
The Court had previously found the 1st Defendant obtained registration through fraud. The taxing master adopted Kshs. 900,000/- (the purchase price in the defendants' sale agreement) as the value. The Court held that where that agreement is impugned and no other proof of value is given, it cannot be the only basis; all relevant matters must be considered to arrive at a fair figure.
Arithmetical error in calculating instructions fees
The taxing master applied 2% to the first Kshs. 1 million band only and failed to add the fees for the next Kshs. 19,000,000/-, committing an error of principle
The Applicant contended that the taxing master, in calculating instructions fees, failed to add fees for the next Kshs. 19,000,000/-. On reviewing the calculation, the Court agreed that the 2% was added to the amount for the first Kshs. 1 million only, yielding the wrong figure - an error of principle justifying interference.
Interference with taxing master's discretion and remedy
Having found errors of principle, the Court remitted the bill back to the taxing master for reassessment of quantum
The Court applied the established principles (Joreth Ltd v Kigano & Associates; Kipkorir Titoo & Kiara Advocates v Deposit Protection Fund Board) that where a taxing officer's decision discloses errors of principle, the normal practice is to remit for reassessment unless the error could not have materially affected the assessment. The Court remitted the bill with guidelines on the correct Remuneration Order and valuation.
Legal principles established
#- The applicable Advocates Remuneration Order for ascertaining instructions fees is that which was operational at the time of filing the suit
- A court may interfere with a taxing master's decision only where it is based on an error of principle or the fee is manifestly excessive or too low as to suggest error of principle
- Where a taxing officer commits an error of principle, the general practice is to remit the question of quantum back to the taxing officer
- The value of the subject matter based on an impugned (fraudulent) sale agreement should not be the sole basis of assessment; the taxing master must consider all relevant circumstances
Court orders
#- 1.The Application dated 24th August 2020 is merited and is allowed entirely
- 2.The matter is referred back to the taxing master to consider the right year of filing of the suit and thus use the correct Remuneration Order
- 3.The taxing master should consider all relevant factors, and not only the value in the Sale Agreement, in arriving at the value of the suit property
- 4.It is so ordered
- Jurisdiction invoked
- Reference from a Taxing Master's decision under the Advocates Remuneration Order; inherent supervisory jurisdiction of the High Court/ELC over taxation references
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joan Nyokabi Ndungu v Stanley Mutimi Njogu & 2 others [2021] KEELC 2966 (KLR)", Case Analysis (2021). Notice of Motion Application dated 24th August 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2966/eng@2021-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.