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ELCDismissedHigh 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· [2023] KEELC 192 (KLR)

Mwangi Njenga & Company Advocates v Shiva Enterprises Limited (Environment and Land Miscellaneous Application 41A of 2020) [2023] KEELC 192 (KLR)

High Court of Kenya
26 January 2023
1,885 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This was a reference by an advocate (as Applicant) under Rule 11 of the Advocates (Remuneration) Order, seeking leave to challenge, and setting aside or variation of, a taxation ruling delivered by Hon. J. M. Nyariki on 15th September 2021 in High Court Miscellaneous Civil Application No. E067 of 2020, together with an order for retaxation of the bill of costs dated 17th November 2020 before another taxing officer. The Applicant argued that the Taxing Master erred in treating a consent order recorded in the primary suit (Msa HCC 101 of 2008) on 13th February 2017, by which Kshs. 1,000,000 was payable as costs of the case, as an agreement on legal fees that precluded recovery of advocate-client costs; and further that the Taxing Master wrongly treated a bank transfer of Kshs. 2,718,200 made on 29th November 2018 as settlement of fees in the primary suit when it related to a separate 2014 suit. The court confirmed the Applicant had complied with Rule 11(2) by lodging a notice of objection and that the Taxing Master's reasons were never furnished, so the court would rely on the ruling itself. Applying the settled principles in 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 held that the consent of 13th February 2017 was clear and that no error of principle in the assessment had been demonstrated. The reference was dismissed with no orders as to costs, the application having been undefended.

Key legal issues

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01

Compliance with Rule 11 of the Advocates (Remuneration) Order

Holding

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

Reasoning

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.

p. 2
02

Effect of the consent order dated 13th February 2017

Holding

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

Reasoning

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.

p. 4
03

Whether the applicant established grounds justifying interference with the Taxing Master's discretion

Holding

No error of principle, capricious exercise of discretion, or manifestly excessive award was established; the application failed

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The reference/application dated 23rd May 2022 is dismissed
  2. 2.No orders as to costs, the application having been undefended

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Advocates (Remuneration) OrderRule 11(1) & (2)

Cases cited (4)

  • First American Bank of Kenya vs Shah and Others
    (2002) E.A.L.R 64
  • Joreth Ltd vs Kigano and Associates
    (2002) 1 EA 92 / (2002) eKLR
  • Republic vs. Minister for Agriculture & 2 Others ex parte Samuel Muchiri W'njuguna
    (2006) eKLR
  • Evans Thiga Gaturu vs Kenya Commercial Bank Limited
    (2012) eKLR
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.