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ELCDismissedMisc. Application No. E32 of 2021 (consolidated with E20, E21, E25, E26, E27, E29, E30, E31 of 2021)· [2022] KEELC 3239 (KLR)

Ogeto t/a Ogeo & Ogeto Advocates v Muchiri (Environment and Land Miscellaneous Application E20, E21, E25, E26, E27, E28, E29, E30, E31 & E32 of 2021 (Consolidated)) [2022] KEELC 3239 (KLR)

Environment and Land Court
28 July 2022
3,531 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The court upheld a taxing officer's decision requiring each jointly-represented client to pay separate advocate fees, confirming no error of principle.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (L. A. Omollo, J) determined a reference under Rule 11 of the Advocates Remuneration Order by former clients (Respondents/Applicants in consolidated Misc. Applications E20, E21, E25, E26, E27, E29, E30 and E31 of 2021) seeking to set aside the taxing master's decision of 25th January 2022, which taxed their former advocates' advocate-client bill at Kshs. 399,355/=. The applicants' sole substantive grievance was that the taxing officer ordered each of them to pay separate instruction fees (Kshs. 150,000) and getting-up fees (Kshs. 50,000) despite joint instructions and joint pleadings, contending the award was oppressive and unfair. The advocates maintained that each party gave and paid for separate instructions, evidenced by separate receipts, and that shared items had in fact been ordered shared. The court framed one issue: whether sufficient grounds existed to interfere with the taxing officer's ruling. Applying the settled principles in Kipkorir Titoo & Kiara, First American Bank v Shah and Joreth Ltd, the court held interference is warranted only for error of principle or manifestly excessive awards. Relying on Nguruman Ltd and Nyamogo & Nyamogo, it affirmed that an advocate instructed by multiple parties in one suit is entitled to separate instruction fees from each client even where a single pleading is filed, and that a filed denial of liability suffices for getting-up fees. The court found the taxing officer exercised judicial discretion on correct principles and dismissed the application with no order as to costs.

Key legal issues

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01

Whether the Taxing Officer erred in principle by awarding separate instruction fees and getting-up fees to each of the jointly-instructed clients

Holding

No error; the advocate is entitled to separate instruction fees from each party he represents, and getting-up fees follow from the filing of a denial of liability

Reasoning

Relying on Nguruman and Nyamogo & Nyamogo, the court held that receipt of instructions from each client is a separate exercise even where a single pleading is filed, and Rule 62(2) requires disallowance only of costs unnecessarily incurred, which is why shared items were ordered shared. Getting-up fees are payable once a denial of liability is filed under Schedule 6 paragraph 2(i), and since separate instruction fees are payable, separate getting-up fees also follow.

p. 6
02

Whether the court could interfere with the Taxing Officer's award on the reference

Holding

No basis established to interfere with the lawful judicial discretion of the Taxing Officer

Reasoning

The applicable principles from Kipkorir Titoo & Kiara, First American Bank and Joreth Ltd permit interference only where the taxing officer erred in principle or the award is manifestly excessive. The court found the taxing officer aware of the correct principles, having shared all costs other than instruction and getting-up fees, and concluded the discretion was exercised judiciously and on correct principles.

p. 8

Legal principles established

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  • A judge on a reference will not interfere with a Taxing Officer's discretion absent an error of principle or manifestly excessive award
  • An advocate instructed by multiple parties in one suit is entitled to separate instruction fees from each party notwithstanding joint pleadings
  • A denial of liability filed or joinder of issues suffices for getting-up fees to be payable

Court orders

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  1. 1.The Respondent/Applicant's Chamber Summons application dated 14th February, 2022 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Advocates Remuneration OrderRules 11(1) and (2)
  • Advocates Remuneration RulesRule 62(2)
  • Advocates Remuneration OrderSchedule 6 Paragraph 2(i)
  • Civil Procedure ActSection 3A
  • Constitution of KenyaArticle 159

Cases cited (7)

  • Kipkorir, Titoo & Kiara Advocates vs Deposit Protection Fund Board
    NRB CA Civil Appeal No. 220 of 2004 [2005] eKLR
  • Republic vs Kenya Medical Supplies Authority & another; Medox Pharmaceuticals Limited (Interested Party); Ex parte Nairobi Enterprises Limited
    [2019] eKLR
  • First American Bank of Kenya Vs Shah and Others
    [2002] 1 E.A. 64
  • Joreth Ltd vs Kigano & Associates
    (2002) 1 EA 92
  • Premchand Raichand Ltd vs Quarry Services of East Africa Ltd
    (1972) EA 162
  • Nyamogo & Nyamogo Advocate Vs Kenya Bus Service & another
    [2006] eKLR
  • Nguruman Limited Vs Kenya Civil Aviation Authority & 3 others
    [2014] eKLR
Jurisdiction invoked
Rules 11(1) and (2) of the Advocates Remuneration Order, Section 3A of the Civil Procedure Act and Article 159 of the Constitution

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, "Ogeto t/a Ogeo & Ogeto Advocates v Muchiri (Environment and Land Miscellaneous Application E20, E21, E25, E26, E27, E28, E29, E30, E31 & E32 of 2021 (Consolidated)) [2022] KEELC 3239 (KLR)", Case Analysis (2022). Misc. Application No. E32 of 2021 (consolidated with E20, E21, E25, E26, E27, E29, E30, E31 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3239/eng@2022-07-28

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