Kwengu & Company Advocates v Raja
The bottom line
#A Kenyan court threw out a lawyer's Kshs 1.3 million fee award because the client was never served before taxation.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex parte taxation constituted an error in principle
Yes - the Taxing Master erred in principle by proceeding with taxation without service of the taxation notice or the bill on the Client, violating natural justice and the right to a fair hearing.
The court had already found in its ruling of 23rd March 2023 that the Client was not served with the taxation notice, the notice of the ruling, or the bill of costs. The court held that proceeding without ascertaining service violated the rule that no one should be condemned unheard and the constitutional right to a fair hearing, amounting to an error in principle justifying interference with the taxation.
What remedy follows from the error in principle
The proper remedy is to set aside the taxation ruling and consequential orders and refer the bill for fresh taxation before a different Taxing Master, not to strike out the bill or decide the substantive objections.
The court agreed with the Advocate's preliminary objection that, having found the taxation was ex parte, the court's jurisdiction was confined to setting aside the impugned taxation and referring the bill for fresh inter-partes taxation. This preserves the Client's opportunity to raise all his objections before the Taxing Master, on which the court deliberately expressed no opinion.
Legal principles established
#- A superior court will not interfere with a Taxing Master's award of costs unless an error in principle is shown.
- Proceeding with taxation without ascertaining proper service on the client is an error in principle violating natural justice and the right to a fair hearing.
Court orders
#- 1.Set aside the Ruling by the Taxing Master delivered on 21st August 2017 and all consequential orders thereof
- 2.Refer the Advocate's bill of costs dated 22nd May 2017 to the Deputy Registrar of the court for fresh taxation before a different Taxing Master
- 3.Costs of the reference to be in the cause
- Jurisdiction invoked
- Reference against a Taxing Master's ruling under the Advocates Act and the court's supervisory jurisdiction over taxation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kwengu & Company Advocates v Raja", Case Analysis (2023). Environment and Land Civil Miscellaneous Application 94 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20377/eng@2023-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.