CM Advocates LLP v Cole (Sued as the administrator of the Estate of Josephine Eleanor Muikobu) (Environment & Land Miscellaneous Case E240 of 2021) [2024] KEELC 537 (KLR)
The bottom line
#Kenya's High Court set aside a low fee assessment because the Taxing Master ignored a property valuation report, ordering the advocate's bill to be retaxed afresh.
What this practically means
#Executive summary
#Key legal issues
#Whether the Taxing Master erred in principle in assessing instruction fees
Yes - the Taxing Master erred by treating the value of the subject matter as unascertainable despite a valuation report having been filed and deliberated upon by the parties, and by failing to consider the payment of Kshs 500,000 pleaded and evidenced by the client
The court applied the Premchand Raichand principles requiring the value of the subject matter to be taken into account and the taxing master's discretion to be exercised judicially. The taxing ruling expressly stated the value was unascertainable from the pleadings, yet a valuation report estimating the property at Kshs 193,500,000 had been filed and considered by the parties. Taking an irrelevant fact (unascertainability) into account or omitting relevant factors constitutes an error of principle warranting interference, with the normal remedy being remittal for reassessment.
Whether reliance on a retainer agreement and on a related miscellaneous application was proper
No - the retainer agreement was not pleaded and each suit must be determined on its own evidence and pleadings; the value of the subject matter cannot be inferred from a similar application before the same Taxing Master
The court emphasized that its function on a reference is strictly confined to the evidence and pleadings submitted at first instance before the Taxing Master. The respondent's retainer agreement of 12th July 2016 had not been pleaded initially and could not ground the taxation. Similarly, in the absence of consolidation, each bill must be taxed on its own merits, so the applicant could not rely on the valuation acknowledged in Miscellaneous Application No. E170 of 2021.
Legal principles established
#- A court cannot interfere with a Taxing Master's decision unless it is shown the decision was based on an error of principle or the fee was manifestly excessive so as to justify an inference of error of principle
- The Taxing Master's jurisdiction to tax advocate-client bills derives from the Advocates Act and Advocates Remuneration Order and depends on an advocate-client relationship
Court orders
#- 1.The Ruling of the Taxing Master Diana Orago dated and delivered on 6th February 2023 taxing the Advocate/Applicant Bill of Costs dated 21st June 2021 at Ksh 319,661.20 is set aside in its entirety
- 2.The Bill of Costs dated 21st June 2021 is remitted for re-assessment in its entirety before a different Taxing Master
- 3.Each party to bear own costs of the application
- Jurisdiction invoked
- Advocates Act and Advocates Remuneration Order - reference against a Taxing Master's decision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "CM Advocates LLP v Cole (Sued as the administrator of the Estate of Josephine Eleanor Muikobu) (Environment & Land Miscellaneous Case E240 of 2021) [2024] KEELC 537 (KLR)", Case Analysis (2024). Chamber Summons application dated 22nd February 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/537/eng@2024-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.