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ELCDismissedNot stated in the judgment (application dated 22/11/2018)· [2021] KEELC 2994 (KLR)

Kimani Richu & Associates Advocates v Centurion Holdings Limited [2021] KEELC 2994 (KLR)

High Court of Kenya
10 May 2021
KBK. BOR
2,257 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to reduce a lawyer's Kshs. 750,000 fee for an unfinished property sale, because the client couldn't prove the fee assessment was wrong.

What this practically means

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Executive summary

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The client (applicant) filed an application dated 22/11/2018 seeking to set aside the taxing master's ruling delivered on 12/9/2019 in which the advocate's bill of costs dated 2/9/2016 was taxed at Kshs. 912,956, including instruction fees of Kshs. 750,000 for an incomplete conveyancing transaction relating to the sale of L.R. Nos. 12565/37 and 12565/38 valued at Kshs. 85,000,000. The client sought that the matter be referred back for taxation afresh or that the court re-tax the bill downwards. The transaction had aborted because the seller, Kathumo Holdings Limited, could not complete. The client argued the advocate did only minimal work (a search and perusing the agreement), that the taxing master erred in principle, that Schedule 5 applied to uncompleted business, and that costs were being double-counted given a pending bill in ELC No. 224 of 2016. The advocate responded that it performed substantial work up to and beyond the completion date, computed fees at Kshs. 1,508,000, and urged the court not to interfere. Reviewing the annexed correspondence, the court found the advocate undertook considerably more work than the client alleged. It held that the Kshs. 750,000 award was not excessive, that the client failed to demonstrate any error of principle or improper exercise of discretion, and declined the application, awarding the advocate the costs. Judgment was delivered virtually at Nairobi on 10 May 2021 by K. Bor, Judge.

Key legal issues

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01

Whether the taxing master erred in principle in awarding instruction fees of Kshs. 750,000 for an incomplete conveyancing transaction with a subject matter value of Kshs. 85,000,000

Holding

No error of principle was established; the award was proportionate to the work done

Reasoning

The court reviewed the correspondence annexed to the bill and found the advocate did substantially more work than the client alleged: writing to the seller's advocates, forwarding the amended draft sale agreement, seeking funds, remitting the deposit, forwarding draft transfers, and proposing caveats. The advocate had charged Kshs. 1,508,000 in the bill and the taxing master taxed off the difference, leaving Kshs. 750,000, which the court found not excessive.

p. 3
02

Whether the applicable schedule for the incomplete conveyance was Schedule V under Paragraph 18 of the ARO, and whether the instruction fee should have been reduced to Kshs. 100,000

Holding

The taxing master correctly applied the ARO framework for an uncompleted conveyance and took into account the relevant factors under Schedule 5 Part II

Reasoning

The taxing master had noted that the transaction terminated at the time of completion and that the advocates engaged at length on the issue of completion. She taxed off Kshs. 550,000 from the amount sought. The client's own concession that the property value was Kshs. 85,000,000 undermined its claim that the fee should be Kshs. 100,000 as in the earlier 2017 ruling.

p. 3

Legal principles established

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  • A court on a reference will not interfere with a taxing master's decision unless the applicant demonstrates that the taxing master erred in principle or exercised discretion improperly
  • Where a conveyancing transaction is not completed, the bill of costs falls to be taxed under Schedule V as provided by Paragraph 18 of the Advocates Remuneration Order, and the instruction fee awarded must be commensurate with the work actually done before the transaction aborted

Court orders

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  1. 1.The application dated 22/11/2018 is declined/dismissed
  2. 2.The Advocate is awarded the costs of the application

Authorities

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Legislation

  • Advocates Remuneration Order, 2014Paragraph 18 (including 18(b) and 18(f)); Schedule 1; Schedule 5 (including Part II paragraph 2); Schedule VI Part II paragraphs 1-6; Rule 20; Paragraph 20

Cases cited (5)

  • Antony Thuo Kanai T/A A. Thuo Kanai Advocates v John Ngigi Ng'ang'a
    [2014] eKLR
  • Maina Murage and Company Advocates v Mae Properties Limited
    [2018] eKLR
  • Premchand Raichand Limited v Quarry Services of East Africa Limited (No. 3)
    [1972] EA 162
  • KTK Advocates v Baringo County Government
    [2017] eKLR
  • Ratemo Oira & Company Advocates v Magereza Sacco Society Limited
    [2019] eKLR
Jurisdiction invoked
Reference against a taxing master's decision under the Advocates Remuneration Order, 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, "Kimani Richu & Associates Advocates v Centurion Holdings Limited [2021] KEELC 2994 (KLR)", Case Analysis (2021). Not stated in the judgment (application dated 22/11/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2994/eng@2021-05-10

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