Advocate/Applicant v Client/Respondent (Reference on Advocate-Client Bill of Costs)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the reference was time-barred under Rule 11
Not time-barred; the court had granted leave to file out of time by its order of 20th February 2023 on an unopposed Notice of Motion dated 29th November 2021
The Respondents argued the reference was filed over a year after the taxation ruling without leave. The court found that the Applicant had in fact sought leave via a Notice of Motion dated 29th November 2021, which was allowed unopposed on 20th February 2023, before the reference was filed on 25th April 2023. The filing was therefore duly sanctioned and the preliminary objection on limitation failed.
Whether the taxing master committed an error of principle by taxing the wrong Bill of Costs
Yes - the taxing master's ruling dealt with a Bill relating to ELC No. 187 of 2011 (49 items, Kshs. 7,931,922) instead of the Applicant's Bill from ELC No. 538 of 2012 (67 items, Kshs. 17,582,727.20), a fundamental error of principle
The court verified the Applicant's Bill of Costs and submissions and found no mention of ELC No. 187 of 2011. Taxing a different, smaller Bill vitiated the entire ruling; failure to ascertain the correct subject matter is a recognised error of principle under Kamunyori and Otieno, Ragot. The error flowed throughout the ruling, which ignored that items 2 to 67 were uncontested, rendering the taxation irrational, inaccurate and unfair.
Whether failure to seek reasons from the taxing master before filing the reference was fatal
No - the taxing master incorporated her reasons in the ruling itself
The Respondents contended the reference was defective because the Applicant did not obtain and annex the taxing master's reasons. The court found it apparent that the reasons for the exercise of discretion were contained in the ruling of 24th June 2021, so the objection did not defeat the reference.
Legal principles established
#- Failure to ascertain the correct subject matter in a suit for purposes of taxation is an error of principle
- A Judge will not interfere with a taxing officer's award unless there is an error of principle or improper exercise of discretion resulting in injustice
- Rule 11 references are a simple and expeditious mode of dealing with decisions on advocates' bills of costs
Court orders
#- 1.The ruling of the Taxing Master dated 24th June 2021 is set aside
- 2.The Applicant's Bill of Costs to be taxed afresh by a taxing master other than Hon. Diana Orago
- 3.Each party to bear its/his own costs
- Jurisdiction invoked
- Rule 11 of the Advocates Remuneration Order - reference to a Judge against a taxing master's ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Advocate/Applicant v Client/Respondent (Reference on Advocate-Client Bill of Costs)", Case Analysis (2024). Reference dated 25th April 2023 (arising from Misc App No. E096 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4026/eng@2024-05-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.