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ELCPartially AllowedChamber Summons application dated 3/12/2018· [2021] KEELC 3313 (KLR)

Muri Mwaniki and Wamiti Advocates v Kifile Dache Gubo & another [2021] KEELC 3313 (KLR)

High Court of Kenya
12 May 2021
717 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Kenya's High Court ruled that a taxing officer cannot strike out a lawyer's bill of costs for missing documents without first asking the lawyer to supply them.

What this practically means

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Executive summary

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This was an advocate's reference under Paragraph 11(2) of the Advocates (Remuneration) Order 1962 by Muri Mwaniki & Wamiti Advocates seeking to set aside a taxing officer's ruling of 13/6/2018 striking out the advocate's bill of costs for failure to avail documents proving services rendered. The applicant contended the taxing officer abused her jurisdiction by striking out the bill without first requesting documents as provided in Paragraph 13A, disregarded Paragraph 74 empowering demand for production of documents, and overlooked Paragraph 69 which does not require annexing supporting documents to a bill. The applicant further argued that relevant documents had been availed through a further affidavit sworn on 22/7/2016 by Mr Njuguna Muri. Justice B M Eboso agreed, finding that a further affidavit with a bundle of no less than 6 exhibits was before the taxing officer but was not referenced in the ruling, suggesting it escaped her attention and led to an error. The court held that had the taxing officer found the documents inadequate, she should have invited the advocate to avail additional specified documents rather than strike out the bill. The 1st respondent's dispute over the client-advocate relationship was left for the taxing officer. The court allowed the application, set aside the ruling of 13/6/2018 in its entirety, remitted the bill of costs dated 5/4/2016 for taxation, and made no order as to costs.

Key legal issues

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01

Whether the taxing officer erred in striking out the bill of costs for want of supporting documents

Holding

Yes - the taxing officer misdirected herself as a further affidavit with exhibits was on record

Reasoning

The record before the taxing officer contained a further affidavit sworn on 22/7/2016 and filed on 25/7/2016 annexing a bundle of no less than 6 exhibits including correspondence. The impugned ruling made no reference to these documents, suggesting they escaped the taxing officer's attention, resulting in an error of jurisdiction.

p. 2
02

Whether the proper remedy was striking out the bill rather than demanding documents

Holding

No - the taxing officer should have requested additional specified documents

Reasoning

Paragraph 13A and Paragraph 74 of the Advocates (Remuneration) Order empower a taxing officer to demand production of relevant documents. Striking out the bill without any prior request to the advocate to supply documents was an error; the court should have invited the advocate to avail additional specified documents.

p. 2
03

Whether the disputed client-advocate relationship should be resolved by the High Court

Holding

No - it remains an issue for the taxing officer

Reasoning

The 1st respondent disputed the existence of a client-advocate relationship in submissions before the court. The judge held this is a matter within the taxing officer's jurisdiction under the Advocates (Remuneration) Order 1962 and not for determination on the reference.

p. 2

Legal principles established

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  • If a taxing officer finds documents inadequate for taxation, she should invite the advocate to avail additional specified documents rather than strike out the bill of costs
  • Disputed existence of a client-advocate relationship is an issue for determination by the taxing officer

Court orders

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  1. 1.Set aside the taxing officer's ruling dated 13/6/2018 in its entirety
  2. 2.Directed that the advocate's bill of costs dated 5/4/2016 together with any emerging issues thereon be considered by the taxing officer in accordance with the law
  3. 3.No order as to costs of the present application

Authorities

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Legislation

  • Advocates (Remuneration) Order 1962Paragraph 11(2)
  • Advocates (Remuneration) Order 1962Paragraph 13A
  • Advocates (Remuneration) Order 1962Paragraph 74
  • Advocates (Remuneration) Order 1962Paragraph 69
On appeal from
null
null
Jurisdiction invoked
Paragraph 11(2) of the Advocates (Remuneration) Order 1962

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, "Muri Mwaniki and Wamiti Advocates v Kifile Dache Gubo & another [2021] KEELC 3313 (KLR)", Case Analysis (2021). Chamber Summons application dated 3/12/2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3313/eng@2021-05-12

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