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ELCAllowedEnvironment and Land Miscellaneous Application 26 of 2018 & Miscellaneous Application 27, 28 & 29 of 2018 (Consolidated)· [2023] KEELC 18562 (KLR)

Kanai t/a A.Thuo Kanai Advocates v Golf Links Limited & another

Environment and Land Court
6 July 2023
MMM.D. Mwangi
3,367 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court threw out a Taxing Master's ruling on lawyers' fees because she ignored the advocate's fee election and the property values involved.

What this practically means

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Executive summary

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This ruling by M.D. Mwangi, J of the Environment and Land Court at Nairobi determines a reference by Anthony Thuo Kanai t/a A. Thuo Kanai Advocates against the Taxing Master's ruling of June 18, 2021 in four consolidated miscellaneous applications concerning advocate-client bills of costs for conveyancing on four properties each valued at Kshs 25,000,000. The applicant contended that the Taxing Master erred by failing to apply the correct subject-matter value, by assessing manifestly low instruction fees without justification, and by disregarding his election under Paragraph 22 of the Advocates Remuneration Order 2009 to charge under Schedule V. The respondents maintained that the Taxing Master exercised her discretion judiciously and that the applicant had already been paid Kshs 970,000 against cumulative taxed fees of Kshs 829,739.60. The court reaffirmed that it will not interfere with a Taxing Master's quantum absent an error in principle, but found multiple such errors: the Taxing Master stated it did not matter that the advocate had elected Schedule V, contrary to Paragraph 22(1); she failed to consider the value of the properties; she did not set out the basic fee or give reasons for reducing instruction fees; she overlooked the rule 22(2) floor; and she made no finding on the company incorporation element of Item 1. The court set aside the ruling of June 18, 2021 in its entirety and remitted the bills for taxation before a different Taxing Master, with costs to the applicant, the orders extending to all four consolidated files.

Key legal issues

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01

Whether the Taxing Master erred in principle in disregarding the advocate's election under Paragraph 22

Holding

Yes - the Taxing Master erred in principle by stating it did not matter that the applicant had elected to charge under Schedule V.

Reasoning

The advocate had served a Notice of Election dated February 18, 2018. Under Paragraph 22(1), once an advocate elects Schedule V, the Taxing Master must proceed as elected. The Taxing Master's statement that the election did not matter was acting on the wrong principle, vitiating the taxation.

p. 5
02

Whether the Taxing Master's assessment of instruction fees was flawed

Holding

Yes - she failed to consider the value of the subject matter, did not set out the basic fee, gave no reasons for reduction, and ignored rule 22(2) and the company incorporation element.

Reasoning

Despite noting the properties' value of Kshs 25,000,000 each, the Taxing Master considered only work done. She did not set out the basic fee before increasing or reducing it, gave no reasons for the decrease, overlooked rule 22(2)'s floor, and made no finding on the company incorporation component of Item 1 - each an error of principle.

p. 6

Legal principles established

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  • Once an advocate makes an election under Paragraph 22(1) of the Advocates Remuneration Order, the Taxing Master must tax in accordance with that election.
  • A court will not interfere with a Taxing Master's quantum unless there is an error in principle or the discretion was improperly exercised resulting in injustice.

Court orders

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  1. 1.The decision of the Taxing Master dated June 18, 2021 is set aside in its entirety
  2. 2.The Advocate/Client Bill of Costs dated February 18, 2018 is remitted back for taxation before a different Taxing Master
  3. 3.The Applicant shall have the costs of the application
  4. 4.The orders to apply in Elc Misc 27 of 2021, Elc Misc 28 of 2021 and Elc Misc 29 of 2021

Authorities

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Legislation

  • Advocates Remuneration OrderParagraph 22(1) and 22(2); Schedule V; Schedule 1

Cases cited (12)

  • Kipkorir, Tito & Kiara Advocates v Deposit Protection Fund Board
    [2005] eKLR

    Judge will not normally interfere with Taxing Officer's discretion unless error in principle.

  • Kamunyori & Company Advocates v Development Bank of Kenya Limited
    (2015) Civil Appeal 206 of 2006

    Failure to ascertain or correctly value subject matter is an error of principle.

  • Paul Ssemogerere & Olum v Attorney General
    Civil Application No 5 of 2001 [unreported]

    No formula for instruction fee; taxing officer's balancing exercise not to be interfered with lightly.

  • University of Nairobi & another v Moses
    (Civil Appeal 119 of 2020) [2022] KECA 45 (KLR)

    High Court's supervisory power over Taxing Master includes correcting decisions disregarding statute.

  • Nyamogo & Nyamogo Advocates v Protex (K) EPZ Limited
    Machakos HCMCA No 176 of 2007

    Election under paragraph 22(1) vests in the advocate; remit to another taxing officer where error in principle.

  • Anthony Thuo Kanai t/a A Thuo Kanai Advocates v John Ngigi Ng'ang'a
    [2014] eKLR

    Advocate can elect Schedule V for non-contentious matters; Schedule V methods of assessing fees.

  • Joreth Limited v Kigano & Another
    [2002] EA 92

    Factors for determining instruction fee.

  • First American Bank of Kenya Ltd v Gulab P Shah & Others
    [2002] 1 EA 61

    Taxing officer must act judicially considering relevant factors.

  • Republic v Minister for Agriculture & 2 Others ex Parte Samuel Muchiri W'Njuguna & 6 Others
    (2006) eKLR

    Relevant factors in exercising taxation discretion.

  • Sophie Chirchir v Africa Merchant Assurance Co. Ltd
    [2022] eKLR

    Quoted Makula International on taxing officer's duty to find scale fee and give reasons.

  • Makula International v Cardinal Nsubuga & Another
    [1982] HCB 11

    Taxing officer must first find the appropriate scale fee and give reasons for increasing or decreasing it.

  • Mwangi Keng'ara & Co. Advocates v Invesco Assurance Company Limited
    [2018] eKLR

    Taxing master's discretion must be exercised fairly and judiciously; cannot oust a legal right.

Jurisdiction invoked
Reference against a Taxing Master's ruling under the Advocates Remuneration Order 2009 (Paragraph 22)

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, "Kanai t/a A.Thuo Kanai Advocates v Golf Links Limited & another", Case Analysis (2023). Environment and Land Miscellaneous Application 26 of 2018 & Miscellaneous Application 27, 28 & 29 of 2018 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18562/eng@2023-07-06

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