Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedChamber Summons application dated 16th December 2022 (Advocate-Client Bill of Costs dated 10th December 2021)· [2024] KEELC 4198 (KLR)

CM Advocates LLP v Cole (Sued as the administrator of the Estate of Josephine Eleanor Moikobu) (Miscellaneous Cause E171 of 2021) [2024] KEELC 4198 (KLR)

Environment and Land Court (High Court exercising reference jurisdiction over taxation by the Deputy Registrar)
2 May 2024
JOJUDY OMANGE
1,169 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The Applicant advocate filed an advocate-client bill of costs dated 10th December 2021 for legal services rendered to the Respondent in ELC 213 of 2019(OS). The Taxing Master, by a ruling dated 22nd November 2022, taxed the bill at Ksh.202,062.80. The Applicant filed a chamber summons reference dated 16th December 2022 seeking review or setting aside of that ruling, arguing that the Taxing Master erred by awarding instruction fees without considering the value of the subject matter as shown in a valuation report, and that she misdirected herself in finding the value unascertainable. The Respondent opposed, contending the parties had a retainer agreement providing a standard fee of Ksh.5,000,000 which was already paid, and alternatively that the taxed amount was excessive since only a miscellaneous application was filed and withdrawn. The court framed two issues: whether the retainer issue, not raised at taxation, could be considered on reference; and whether the Taxing Master erred in principle. On the first, the court held, applying Wilfred Konosi v Flamco Limited, that the retainer issue should have been raised before the Deputy Registrar and could not be entertained at the reference stage, new issues being prejudicial and against public policy. On the second, the court applied the Joreth Limited principle that subject matter value must be drawn from pleadings, judgment or settlement, and disagreed with decisions of concurrent jurisdiction admitting valuation reports, holding that a party who omits value from pleadings and pays lower filing fees cannot later rely on other documents to justify higher fees. Finding no error of principle, the court dismissed the reference with costs.

Key legal issues

#
01

Whether the court can consider the retainer issue not raised at taxation

Holding

No; the issue should have been raised before the Deputy Registrar and cannot be entertained at the reference stage

Reasoning

The Respondent's advocate participated in the taxation and filed submissions but never raised the retainer issue. Following Konosi v Flamco, such an issue should first be dealt with by the Deputy Registrar. Introducing new evidence/issues at the reference (appellate) stage prejudices the opposing party and offends public policy.

p. 2
02

Whether the Taxing Master erred in principle in finding the value of the subject matter unascertainable

Holding

No error of principle; the Taxing Master correctly applied the Joreth Limited principle and properly exercised her discretion

Reasoning

The value was not in the pleadings; the court declined to follow decisions of concurrent jurisdiction allowing valuation reports, holding that a party who understates value in pleadings and pays lower filing fees should not later rely on a valuation report to justify higher fees. The Taxing Master's discretionary award of Kshs 100,000 as instruction fee, considering the matter's importance and duration, disclosed no error justifying interference.

p. 3

Legal principles established

#
  • A party who did not indicate the value of the subject matter in the pleadings cannot later rely on extraneous documents such as a valuation report to justify higher taxed fees
  • Per Joreth Limited principles, the value of the subject matter for taxation is to be assessed as contained in the pleadings, judgment or settlement
  • A party cannot introduce a new issue (such as retainer) for the first time at the reference stage where it was not raised before the Taxing Master

Court orders

#
  1. 1.The chamber summons application dated 16th December 2022 is dismissed
  2. 2.Costs awarded to the Respondent

Authorities

#

Legislation

  • Advocates ActSection 45(1)
  • Advocates Remuneration OrderSchedule VI

Cases cited (7)

  • Showcase Property Limited v Mugambi and company Advocates
    [2020] eKLR
  • Kakuta Maimai Hamise v Persis Pesi Tobiko & 3 others
    [2015]
  • Sammy Some Kosgei v Grace Jelei Boit
    [2014] eKLR
  • G. Percy Trentham Ltd v Archital Luxfer Ltd
    [1993] 1 Lloyds Rep
  • Wilfred Konosi t/a Konosi & Co Advocates v Flamco Limited
    [2017] eKLR
  • Wanga & Co. Advocates
    null
  • Joreth Limited
    null
On appeal from
Deputy Registrar (Taxing Master)
Advocate-Client Bill of Costs dated 10th December 2021
Jurisdiction invoked
Reference against a taxation ruling under the Advocates Act and the Advocates Remuneration Order

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 Moikobu) (Miscellaneous Cause E171 of 2021) [2024] KEELC 4198 (KLR)", Case Analysis (2024). Chamber Summons application dated 16th December 2022 (Advocate-Client Bill of Costs dated 10th December 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4198/eng@2024-05-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.