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ELCPartially AllowedChamber Summons application dated 22nd February 2023· [2024] KEELC 537 (KLR)

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)

High Court of Kenya
8 February 2024
1,657 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Applicant-Advocate filed a reference by Chamber Summons dated 22nd February 2023 seeking to vacate and set aside the ruling of Taxing Master Diana Orago (DR) delivered on 6th February 2023, which taxed the Advocate-Client Bill of Costs dated 21st June 2021 at Kshs 319,661.20. The Applicant sought re-assessment by the Court or, alternatively, remittal to the same or a different Taxing Master, contending the Taxing Master ignored a valuation report estimating the property's value at Kshs 193,500,000 and awarded fees grossly disproportionate to the work done. The Respondent relied on an alleged retainer agreement of 12th July 2016, asserted payments of Kshs 5,000,000 between 2018 and 2021, and alternatively sought taxation at Kshs 65,000. The court, E. K. Wabwoto J, framed the sole issue as whether the Taxing Master erred in law and principle. Applying the Konosi decision on jurisdiction and the Premchand Raichand principles, and echoing Ojwang J in the Muchiri W'njuguna case, the court held that the Taxing Master erred in principle by treating the value of the subject matter as unascertainable when a valuation report had been filed and deliberated upon, and by failing to consider the payment of Kshs 500,000 pleaded and evidenced by the client. The court declined to consider the unpleaded retainer agreement and refused to infer the subject matter's value from a related miscellaneous application. The ruling of 6th February 2023 was set aside in its entirety and the bill remitted for re-assessment before a different Taxing Master, with each party bearing its own costs.

Key legal issues

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01

Whether the Taxing Master erred in principle in assessing instruction fees

Holding

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

Reasoning

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.

p. 4
02

Whether reliance on a retainer agreement and on a related miscellaneous application was proper

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.The Bill of Costs dated 21st June 2021 is remitted for re-assessment in its entirety before a different Taxing Master
  3. 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

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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 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.