Mirugi Kariuki & Co Advocates v Kahungura & another (Environment and Land Miscellaneous Application 11 of 2021) [2022] KEELC 2791 (KLR)
The bottom line
#Kenya's Environment and Land Court found a taxing officer used the wrong fee schedule and re-taxed the advocate's bill higher itself, to about Kshs 1.3 million.
What this practically means
#Executive summary
#Key legal issues
#Erroneous schedule applied in computing instruction fees
The taxing master erred in principle by relying on Schedule 6(1)(a) instead of Schedule 6(1)(b) in a defended suit
The suit was defended and, per the Advocates (Remuneration) Order, instruction fees in defended matters fall under paragraph 1(b) of Schedule 6, calculated on the first Kshs 1,000,000 plus 2% of the balance. The court recomputed the fee at Kshs 390,746.20 and, considering work done and time spent, increased it to Kshs 600,000/=, with getting up fees at one third.
Value of the subject matter in a trespass claim
The value of the subject matter was the sum awarded (Kshs 8,537,309.88), not the alleged land value of Kshs 280,000,000
The applicant argued the value was the land's current valuation of Kshs 280 million. The court held the value of the subject matter in a trespass suit is ascertainable from the claim and award, not the land's market value; the land value neither featured in nor was ascertainable from the pleadings.
Court attendance fees for dates when the matter was not in court
Items 4, 5, 10, 20, 25 and 28 were undeserved as the matter was not before court on those dates; items 21, 22 and 23 were taxable at Kshs 1,100 each
The court scrutinised the court proceedings for each challenged attendance date. Where the record showed the matter was not listed, the attendance fee was undeserved and taxed off. Where the record confirmed mention on the stated dates, the fee of Kshs 1,100 under paragraph 7 of Schedule 6 was properly awarded.
Legal principles established
#- Where a defended suit is involved, the taxing master should apply Schedule 6 paragraph 1(b) rather than 1(a) in assessing instruction fees
- In a trespass suit, the value of the subject matter for instruction fees is the sum awarded, not the value of the land
- Costs for preparation of separate pleadings for multiple parties are not separately payable where interests were not severed
Court orders
#- 1.The applicant's application dated August 12, 2021 is allowed
- 2.Instruction fees of Kshs 400,000/= substituted with Kshs 600,000/=
- 3.Getting up fees of Kshs 133,333/= substituted with Kshs 200,000/=
- 4.VAT on instruction fees at 16% fixed at Kshs 96,000/=
- 5.Items No's 4, 5, 10, 20, 25 and 28 collectively taxed off at Kshs 6,600/=
- 6.All other items to remain as taxed by the taxing master
- 7.Bill of costs re-taxed globally at Kshs 1,308,316.50 and the Deputy Registrar to issue a certificate accordingly
- 8.Each party to bear their own costs of the instant reference
- Jurisdiction invoked
- Reference against a taxing officer's decision under the Advocates Act and the Advocates (Remuneration) Order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mirugi Kariuki & Co Advocates v Kahungura & another (Environment and Land Miscellaneous Application 11 of 2021) [2022] KEELC 2791 (KLR)", Case Analysis (2022). Chamber Summons application dated August 12, 2021 (reference from taxation in Nakuru ELC No. 124 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2791/eng@2022-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.