Lubulellah & Associates v Swanya Limited [2022] KEELC 626 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Timeliness and competence of the reference under paragraph 11 of the Advocates Remuneration Order
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)
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).
Whether the Taxing Officer erred in principle on items 63 and 64
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
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.
Legal principles established
#- 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
#- 1.The taxing officer's award in relation to item Number 63 and 64 is set aside
- 2.The rest of the items shall remain as taxed by the taxing officer
- 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.Each party shall bear their respective costs of the reference
- Jurisdiction invoked
- Paragraph 11(2) and 11(4) of the Advocates Remuneration Order 2014
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.