Kenya Aids Ngos Consortium & another v Urthur Ingutya & Co. Advocates & another (Miscellaneous Reference Application E060 of 2023) [2024] KEELC 1766 (KLR)
The bottom line
#Kenya's High Court cut an advocate's legal bill by sending part back for recalculation, ruling the taxing officer ignored a property valuation report when setting the fee.
What this practically means
#Executive summary
#Key legal issues
#Error of principle in taxing instruction fee on the original claim (item 1)
The Taxing Officer erred in principle by fixing the value at Kshs.9,000,000 without regard to the valuation report of Kshs.26,000,000 on the court record
The taxing master acknowledged the value was not ascertainable from the plaint and relied on the nature of the suit, the competing ownership claim and the record, noting the property's location in Langata. The court held that having considered the pleadings and documents on record, she ought also to have been guided by the valuation report filed on 11th January 2022, and that this omission amounted to an error of principle warranting reference back for re-taxation.
Taxation of instruction fee on the counterclaim (item 2)
The taxing master correctly used the amount pleaded in the counterclaim as the basis for the instruction fee; the court declined to interfere
The applicant argued that the counterclaim figure had no basis and that the taxing officer should have exercised discretion. The court held that a counterclaim is a suit by itself and Schedule 6 of the Advocates Remuneration Order permits value to be determined from the face of the pleadings; whether the special damages pleaded would ultimately be proved was immaterial to taxation of instruction fees for defending the counterclaim as instructed.
Entry of judgment on the taxed costs pending reference
The Respondent's motion for entry of judgment was premature and was struck out
The court reasoned that since taxation of the instruction fee on the original claim had been referred back to the taxing master for assessment, entering judgment for the full taxed sum would be premature. The application dated 3rd October 2023 was therefore struck out with no order as to costs.
Legal principles established
#- A court on a reference will not interfere with a taxing officer's assessment of costs unless an error of principle is demonstrated; where the taxing officer exercised discretion, the question is whether that discretion was exercised on error of principle
- Application of a wrong principle can be inferred from an award that is manifestly excessive or manifestly low
Court orders
#- 1.The reference succeeds on item 1 of the Bill of Costs, which is referred back to the Deputy Registrar to tax
- 2.The court declines to interfere with the Taxing Officer's decision on item 2 of the Bill of Costs
- 3.Each party to meet their respective costs of the reference/application for leave
- 4.The Respondent's notice of motion dated 3rd October 2023 seeking entry of judgment is struck out with no order as to costs
- Jurisdiction invoked
- Reference against a taxing officer's decision under the Advocates Remuneration Order
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Kenya Aids Ngos Consortium & another v Urthur Ingutya & Co. Advocates & another (Miscellaneous Reference Application E060 of 2023) [2024] KEELC 1766 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1766/eng@2024-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.