Gikeria & Vadgama Advocates v Okali (Miscellaneous Application 166 of 2019) [2022] KEELC 2301 (KLR)
The bottom line
#A Kenyan court ruled that a Taxing Officer cannot decide whether an advocate deserves fees at all - that call belongs to a Judge.
What this practically means
#Executive summary
#Key legal issues
#Whether a reference (as opposed to an appeal) is the proper procedure to challenge a Taxing Officer's decision
A reference under paragraph 11 of the Advocates Remuneration Order is the only procedure provided for challenging a taxing officer's decision, and the court on a reference has jurisdiction to determine the whole ruling including any application determined by the taxing officer.
The Advocates Remuneration Order makes no provision for an appeal against a taxing officer's decision; the only challenge mechanism is a reference under paragraph 11. Since the impugned ruling dealt with both the bill of costs and the client's application, the reference court could determine the merits of both.
Whether the Deputy Registrar had jurisdiction to determine the application dated March 6, 2020 filed under clause 61
The Taxing Officer lacked jurisdiction to summarily dismiss the clause 61 application; it should have been referred to the Judge for hearing and determination before taxation of the bill.
Although the taxing master's jurisdiction under paragraph 13A extends to incidental matters (as held in C.B. Gor & Gor), the client's application was brought under clause 61 alleging the advocate was not entitled to costs due to misconduct. Such a complaint must be heard by the Judge; dealing with it summarily exceeded the taxing officer's jurisdiction, so the entire ruling had to be set aside.
Whether the taxed amount of Kshs 965,281.51 was manifestly excessive
Not determined; the ruling was set aside in its entirety on jurisdictional grounds before this question fell for consideration.
The applicant argued the instruction fee was unreasonably increased and cited Arif Bayusuf v Lucy Tofani where Kshs 100,000 was awarded. However, because the court found the Taxing Officer lacked jurisdiction over the clause 61 application, the ruling including the taxation was set aside in its entirety and the bill's quantum was left for fresh determination.
Legal principles established
#- The taxing officer's jurisdiction includes matters incidental to the taxing of a bill of costs, but where a client's complaint falls under clause 61 of the Advocates (Remuneration) Order, the application must be referred to the Judge before the bill is taxed.
Court orders
#- 1.The Ruling of the Taxing Officer dated June 10, 2020 is hereby set aside in its entirety
- 2.The application dated March 6, 2020 to be heard by this court
- 3.Each party will bear his/its own costs
- Jurisdiction invoked
- Paragraph 11 of the Advocates Remuneration Order (reference against decision of Taxing Officer)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gikeria & Vadgama Advocates v Okali (Miscellaneous Application 166 of 2019) [2022] KEELC 2301 (KLR)", Case Analysis (2022). Misc Application No 166 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2301/eng@2022-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.