BM Mung'ata & Company Advocates v Makiti (Environment and Land Miscellaneous Application E013 of 2022) [2024] KEELC 1109 (KLR)
The bottom line
#A Kitui court increased an advocate's taxed fees from about Kshs 187,000 to Kshs 437,033 because the taxing officer omitted mandatory getting up fees and the 50% advocate-client increase.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection was a pure point of law
The objection failed because it raised factual matters not ascertainable as pure points of law
Applying the Mukisa Biscuit locus classicus, the court found the preliminary objection contained factual assertions requiring proof from the record, some of which were incorrect. A valid preliminary objection must rest solely on law; since facts had to be ascertained and could not be presumed correct, the objection could not stand.
Whether instruction fees of Kshs 150,000 were inordinately low
No error of principle; the award was within the taxing officer's discretion and not manifestly low
Schedule 6 (A)(1)(j) sets a minimum of Kshs 100,000 for opposed judicial review matters. The taxing officer considered the subject matter, complexity and parties' interests. The applicant did not demonstrate the complexity, significance or bulk of work justifying Kshs 1,000,000, so the discretion was not disturbed.
Whether getting up fees should have been awarded
The taxing officer erred in principle; getting up fees of one-third of instruction fees were awarded
The taxing officer relied on National Bank of Kenya v Rachuonyo, an appeal case requiring certification, but this was a judicial review matter. Schedule 6 (2) requires only a denial of liability and joinder of issues. A denial was filed and the matter proceeded by written submissions, so getting up fees were payable, distinguishable from the Rachuonyo appeal authority.
Whether VAT and the 50% advocate-client increase were properly applied
VAT had been awarded by the taxing officer; the 50% increase under Schedule 6 (B) was wrongly omitted and was added
The taxing officer had in fact awarded VAT at 16% relying on Pyramid Motors, contrary to the applicant's claim. However, the court found the failure to increase the taxed fees by 50% as required by Schedule 6 (B) was an error in principle, and the increase was applied to the sub-total of Kshs 268,410.
Legal principles established
#- A court will interfere with a taxing officer's award only where it is shown the decision was based on an error of principle or the fee was manifestly excessive or so low as to amount to an injustice
- A preliminary objection must consist of a pure point of law, not facts requiring ascertainment from the record
- Getting up fees are payable where a denial of liability is filed, even in judicial review proceedings, under Schedule 6 (2) of the Advocates (Remuneration) Order
- As between advocate and client, fees under Schedule 6 (A) must be increased by 50% under Schedule 6 (B)
Court orders
#- 1.The decision of the taxing officer dated 8th March 2023 on the taxation of the applicant's Bill of Costs dated 14th September 2022 set aside and/or varied to a limited extent
- 2.Item 1 - Instructions fees taxed at Kshs 150,000.00
- 3.Item 2 - Getting up fee for trial awarded at Kshs 50,000.00
- 4.All other items to remain as taxed by the Taxing Officer at Kshs 68,410.00
- 5.Sub-total of Kshs 268,410.00 increased by 50% under Schedule 6 (B) being Kshs 134,205.00
- 6.VAT at 16% of Kshs 402,615 added being Kshs 64,418.40
- 7.Less amount paid Kshs 30,000.00
- 8.Grand total of Kshs 437,033.40 payable
- On appeal from
- Chief Magistrate's Court / Deputy Registrar (Taxing Officer), Kitui
- Advocate-Client Bill of Costs dated 14th September 2022, taxed 8th March 2023
- Jurisdiction invoked
- Reference against a taxing officer's decision under the Advocates (Remuneration) Order 2014
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "BM Mung'ata & Company Advocates v Makiti (Environment and Land Miscellaneous Application E013 of 2022) [2024] KEELC 1109 (KLR)", Case Analysis (2024). Chamber Summons dated 22nd March 2023 (arising from Advocate-Client Bill of Costs dated 14th September 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1109/eng@2024-02-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.