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ELCPartially AllowedChamber Summons dated 16/12/2021 (Advocate-Client Bill of Costs dated 8/02/2021)· [2022] KEELC 626 (KLR)

Lubulellah & Associates v Swanya Limited [2022] KEELC 626 (KLR)

High Court of Kenya
16 March 2022
3,024 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 cut KES fees a client was billed for land rates and stamp duty it had already paid, but kept the rest of the advocate's taxed costs.

What this practically means

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Executive summary

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This is a reference under paragraph 11(2) of the Advocates Remuneration Order 2014 by the client (applicant) seeking to set aside the Taxing Officer's ruling of 25/11/2021 taxing an advocate-client bill of costs at KES 706,434.60. The bill arose from a conveyancing transaction for the sale of land LR 209/106691/1 at a purchase price of KES 45,000,000. The client challenged items 1, 2, 23, 61, 64 and 67, contending errors of principle, and sought reassessment or remittal. The advocate opposed, arguing the reference was filed out of the 14-day period under paragraph 11 with no application for extension of time, and that the court lacked jurisdiction. The court framed two issues: competence for lateness under paragraph 11, and whether the Taxing Officer erred in principle. On the first, it held the reasons were contained in the ruling delivered in counsel's presence, so the delay was unexplained and the reference was incompetent under Rule 11(1), following Evans Gaturu Thiga, Ahmednasir Abdikadir and Twiga Motor. The court nonetheless proceeded to the merits hypothetically. Applying First American Bank v Shah, it found an error of principle in respect of items 63 and 64 (land rates and stamp duty), which the Taxing Officer failed to address despite evidence the client had paid them. Items 1, 2, 23 and 67 were properly taxed as incidental work under Rule 20(1). The court set aside items 63 and 64, recalled the certificate of costs dated 25/11/2021 and directed a fresh certificate, declining remittal to avoid clogging the court's diary. Each party was to bear their own costs of the reference, the error being attributable to the Taxing Officer.

Key legal issues

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01

Timeliness and competence of the reference under paragraph 11 of the Advocates Remuneration Order

Holding

The reference was filed out of time and no sufficient cause or extension of time was demonstrated; the reference was incompetent in relation to Rule 11(1)

Reasoning

The court found the ruling was delivered in the presence of counsel who must have known the reasons, and that the ruling itself contained the reasons. The applicant never contended the reasons were insufficient, so awaiting a certified copy did not explain the delay. The court relied on Evans Gaturu Thiga, Ahmednasir Abdikadir and Twiga Motor to hold the reference incompetent under Rule 11(1).

p. 3
02

Whether the Taxing Officer erred in principle on items 63 and 64

Holding

Yes - the taxing officer awarded items 63 and 64 (land rates and stamp duty) despite evidence that the applicant had paid them, amounting to an error of principle

Reasoning

The taxing officer disallowed items 61 and 62 after the respondent availed proof of payment, but failed to address related items 63 and 64, which were for land rates and stamp duty paid by the client. Applying First American Bank v Shah, an omission to consider relevant factors is an error of principle, warranting setting aside those awards rather than remittal.

p. 4

Legal principles established

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  • Where reasons are contained in the taxing officer's decision, filing a reference more than 14 days after delivery renders the reference incompetent
  • A court may interfere with a taxing officer's decision only on an error of principle or where the fee is manifestly excessive; the normal practice on error of principle is remittal unless the error cannot materially affect the assessment
  • Where the taxing officer erred only on discrete items, the judge may set aside those awards and dispose of the matter without referring it back

Court orders

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  1. 1.The taxing officer's award in relation to item Number 63 and 64 is set aside
  2. 2.The rest of the items shall remain as taxed by the taxing officer
  3. 3.The certificate of costs dated 25/11/2021 is recalled and set aside and a fresh certificate of costs is to be issued in tandem with the disposal orders in this ruling
  4. 4.Each party shall bear their respective costs of the reference

Authorities

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Legislation

  • Advocates Remuneration Order 2014Paragraph 11(1), 11(2), 11(4)
  • Advocates Remuneration OrderRule 20(1)

Cases cited (13)

  • BMbai Associate Advocates v Clerk, Kiambu County Assembly & Another
    [2017] eKLR
  • Joreth Limited v Kigano and Associates
    [2002] E.A 92
  • Premchand Raichand Limited & Another v Quarry Services of East Africa Limited and Another
    [1972] E.A 762
  • Arthur v Nyeri Electricity Undertaking
    [1967] E.A 492
  • Labh Singh Harman Singh Ltd v Attorney General & 2 Others
    (2016) eKLR
  • Martin Mburu & Chepkemboi Advocates v Occidental Insurance Company Limited
    [2017] eKLR
  • Attorney General v Kenneth Kiplagat
    (2010) eKLR
  • Machira & Co. Advocates v Arthur K. Magugu & Margaret Wairimu
    CA 199/2002 [2012] eKLR
  • First American Bank of Kenya Ltd v Gulab P. Shah & 2 Others
    [2002]
  • Evans Gaturu Thiga v Kenya Commercial Bank Limited
    [2011] eKLR
  • Ahmednasir Abdikadir & Co Advocates v National Bank of Kenya Limited (2)
    (2006) EA 5
  • Twiga Motor Limited v Hon Dalmas Otieno Anyango
    [2015] eKLR
  • First American Bank of Kenya v Shah & Others
    [2002] 1 EA 64
Jurisdiction invoked
Paragraph 11(2) and 11(4) of 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, "Lubulellah & Associates v Swanya Limited [2022] KEELC 626 (KLR)", Case Analysis (2022). Chamber Summons dated 16/12/2021 (Advocate-Client Bill of Costs dated 8/02/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/626/eng@2022-03-16

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