Mwangi Njenga & Company Advocates v Shiva Enterprises Limited (Environment and Land Miscellaneous Application 41A of 2020) [2023] KEELC 192 (KLR)
The bottom line
#The High Court in Mombasa dismissed an advocate's challenge to a taxing officer's costs ruling, confirming that signed fee agreements bind both parties.
What this practically means
#Executive summary
#Key legal issues
#Compliance with Rule 11 of the Advocates (Remuneration) Order
The Applicant filed an objection/reference under Rule 11(2) on 29th September 2021 seeking reasons for the taxation, which were never furnished; the court therefore relied on the Taxing Master's ruling
The court perused the record and confirmed the Applicant lodged a notice of objection seeking the Taxing Master's reasons. Rule 11(2) requires the taxing officer to furnish reasons, failing which the objector may apply to a judge within fourteen days. Since the reasons were never given, the reference was properly before the court, which would rely on the ruling itself.
Effect of the consent order dated 13th February 2017
The consent, which provided that the Defendant's Advocates be paid Kshs. 1 million as costs of the case, was clear and the Taxing Officer made no error in treating it as a binding agreement on fees
The court examined the consent entered on 13th February 2017, which stated the Defendant's Advocates be paid Kshs. 1 million as costs of the case. Accepting the Taxing Master's reasoning that a prior agreement on legal fees binds the parties unless controverted by another agreement, the court found the consent clear and unambiguous and no error of principle in the assessment.
Whether the applicant established grounds justifying interference with the Taxing Master's discretion
No error of principle, capricious exercise of discretion, or manifestly excessive award was established; the application failed
Relying on First American Bank of Kenya v Shah, Joreth Ltd v Kigano & Associates and Republic v Minister for Agriculture ex parte Samuel Muchiri W'njuguna, the court reiterated that a taxing officer's discretion is interfered with only where based on an error of principle or a manifestly excessive or capricious award. The Applicant did not demonstrate any such error in the taxation.
Legal principles established
#- A court will not interfere with a taxing officer's decision unless it is shown that the decision was based on an error of principle or the fee awarded was manifestly excessive so as to justify an inference of error of principle
- Where parties have entered a prior agreement on legal fees, that agreement, unless controverted by another agreement, is binding on both parties
Court orders
#- 1.The reference/application dated 23rd May 2022 is dismissed
- 2.No orders as to costs, the application having been undefended
- On appeal from
- Deputy Registrar / Taxing Master (Hon. J. M. Nyariki)
- High Court Miscellaneous Civil Application No. E067 of 2020
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act and Rule 11(1) & (2) of the Advocates (Remuneration) Order
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Shiva Enterprises v Mwangi Njenga & Company Advocates [2020] KEELC 1100 (KLR)[2020] KEELC 1100 (KLR)23 Sept 2020
- Republic v Tigania East District Land Adjudication and Settlement Officer & another; Shadrack Muthee M’ Imanja (Interested Party) Exparte Applicant Domenica Kalotia Kalalu [2020] KEELC 2387 (KLR)[2020] KEELC 2387 (KLR)21 May 2020
Cite this brief
#Cite this brief
Caselaw, "Mwangi Njenga & Company Advocates v Shiva Enterprises Limited (Environment and Land Miscellaneous Application 41A of 2020) [2023] KEELC 192 (KLR)", Case Analysis (2023). High Court Miscellaneous Civil Application (Reference) re Bill of Costs dated 17th November 2020, arising from Msa HC Misc. Civil Application No. E067 of 2020 and primary suit Msa HCC 101 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/192/eng@2023-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.