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ELCPartially AllowedEnvironment & Land Case E270 of 2022· [2023] KEELC 21228 (KLR)

CM Advocates LLP v Nairobi City County & 3 others

Environment and Land Court
31 October 2023
MMM. D. Mwangi
1,318 words in judgment
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The bottom line

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The High Court confirmed that a taxing officer who cannot see a case's value from the pleadings makes a reviewable error, and the law firm's fee dispute gets a fresh hearing.

What this practically means

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Executive summary

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This is a ruling by M. D. Mwangi, J of the Environment and Land Court at Nairobi on a reference brought under Rule 11(2) of the Advocates (Remuneration) Order by CM Advocates LLP against the taxation of its advocate-client bill of costs by Taxing Master Hon. Diana Orago. The Taxing Master had taxed the bill at Kshs 624,620.00 after finding that the value of the subject matter of the underlying suit, ELCC 218 of 2015 (Mariakani Welfare Estate Association v County Government of Nairobi & others), was unascertainable from the pleadings and the ruling. The Applicant contended this was an error of principle because the pleadings disclosed a debt swap agreement involving a debt of Kshs 1.2 billion for a property valued at Kshs 1.95 billion, and that the wrong schedule (Schedule VI paragraph (j) rather than paragraph (a)) was applied, producing manifestly low instruction fees. The 1st Respondent, though served and represented, did not file a response. The Court agreed that the value was determinable from the pleadings and, applying Kamunyori & Company Advocates v Development Bank of Kenya Limited, held that failure to ascertain or correctly value the subject matter is an error of principle. The Court allowed the application dated 15th November 2022, set aside the ruling of 13th October 2022, remitted the bill of costs dated 23rd December 2021 for taxation before a different taxing master, and awarded the Applicant the costs of the application.

Key legal issues

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01

Whether the Taxing Master erred in principle by finding the value of the subject matter unascertainable

Holding

Yes - the value of the subject matter (a debt of Kshs 1.2 billion for a property valued at Kshs 1.95 billion) was determinable from the pleadings, so the finding was an error of principle

Reasoning

The Court perused the pleadings in ELCC 218 of 2015 and found the value of the subject matter clearly stated. The erroneous finding led the Taxing Master to apply the wrong schedule of the Advocates Remuneration Order, resulting in manifestly low instruction fees. Following Kamunyori & Company Advocates v Development Bank of Kenya, an error of principle warrants setting aside the taxation.

p. 3

Legal principles established

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  • Failure to ascertain the correct subject matter or to ascribe the correct value to the subject matter in taxation is an error of principle justifying interference by the court

Court orders

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  1. 1.The ruling of 13th October, 2022 by Hon. Diana Orago is set aside
  2. 2.The Bill of costs dated 23rd December, 2021 be remitted for taxation before a different taxing master
  3. 3.The Advocate shall have the costs of this application

Authorities

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Legislation

  • Advocates (Remuneration) OrderRule 11(2); Schedule VI paragraph (j); Schedule VI paragraph (a)

Cases cited (1)

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

    Failure to ascertain or correctly value the subject matter in taxation is an error of principle; courts interfere only on error of principle

On appeal from
Taxing Officer (ELC Misc. E244/2021)
ELC Misc. E244 of 2021
Jurisdiction invoked
Rule 11(2) of the Advocates (Remuneration) Order - reference from taxation of an advocate-client bill of costs

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, "CM Advocates LLP v Nairobi City County & 3 others", Case Analysis (2023). Environment & Land Case E270 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21228/eng@2023-10-31

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