Bebadis Company Limited & another v Nyota & 2 others
The bottom line
#Kenya's Environment and Land Court set aside a lawyer's fee award, ruling the taxing officer used the wrong fee schedule and wrongly charged trial fees in a case never set for trial.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of the reference under Rule 11 of the Advocates Remuneration Order
The reference was timeously filed because the 14-day period runs from when the ruling containing reasons was supplied (24th August 2023), not from delivery of the ruling in the applicant's presence.
The court held that upon lodgment of a Notice of Objection, the obligation to supply the ruling with reasons shifts to the Deputy Registrar, who must act with due dispatch. The respondents did not place evidence controverting the applicant's deposition that the ruling was only availed on 24th August 2023. The reference filed on 25th August 2023 was therefore within 14 days of receipt of the reasons.
Error of principle in taxing instruction fees
The taxing master applied the wrong clause (Schedule 6 paragraph (1)(b)) to a matter commenced by miscellaneous application and failed to identify the applicable scale fee benchmark before exercising discretion, vitiating the taxation of instruction fees.
The operative pleading (Notice of Motion) disclosed no value of the suit property, so Schedule 6 paragraph (a) could not apply and paragraph (1)(b) was inapplicable; the correct head was Schedule 6 paragraph (l) 'Other matters'. Further, discretion cannot be exercised before appreciating the statutory benchmark/scale fee upon which it is pegged. These were glaring errors of commission and omission amounting to an error in principle.
Award of getting up fees
Getting up fees were wrongly awarded because the matter, being a miscellaneous application disposed of on affidavit evidence and submissions, was never confirmed for trial with viva voce evidence.
The court reproduced paragraph 2 of the Advocates Remuneration Order and held that getting up fees contemplate a full trial where counsel prepares witnesses and viva voce evidence is tendered. None of these thresholds was met in a miscellaneous application, so the award of getting up fees was a grave error vitiating the discretion exercised.
Legal principles established
#- The 14-day timeline for filing a reference under Rule 11(2) of the Advocates Remuneration Order runs from the date the ruling containing the reasons for taxation is availed to the applicant, not from delivery of the ruling in the applicant's presence.
- Where proceedings are commenced by miscellaneous application, Schedule 6 paragraph (1)(b) of the Advocates Remuneration Order is inapplicable; such matters fall under Schedule 6 paragraph (l) 'Other matters'.
- A taxing officer must identify the applicable scale fee as the benchmark before exercising discretion to increase or decrease instruction fees.
- Getting up fees are awardable only where a suit is confirmed for hearing/trial with viva voce evidence; they do not arise in matters disposed of on affidavit evidence and submissions.
Court orders
#- 1.The Chamber Summons Application dated the 25th August 2023 is allowed.
- 2.The Certificate of Taxation at the foot of the Ruling rendered on the 11th May 2023 is set aside, varied and/or rescinded.
- 3.The 1st and 2nd Respondents' Bill of Costs is remitted to the taxing master for re-taxation.
- 4.The re-taxation shall be taken before a Deputy Registrar other than Hon. Diana Orago, SRM.
- 5.Each Party shall bear own costs of the Reference.
- Jurisdiction invoked
- Reference against a Taxing Master's decision under Rule 11 of the Advocates Remuneration Order; supervisory jurisdiction of the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bebadis Company Limited & another v Nyota & 2 others", Case Analysis (2023). Miscellaneous Application E055 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21606/eng@2023-11-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.