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ELCPartially AllowedChamber Summons dated 25th January 2023 (Reference from Machakos ELC Misc. Appl. E023 of 2021)· [2024] KEELC 5365 (KLR)

Mwangangi & Co Advocates v Mbaabu (Miscellaneous Application E008 of 2023) [2024] KEELC 5365 (KLR)

Environment and Land Court of Kenya
10 July 2024
6,744 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~27 min to read original · ~4 min brief

The bottom line

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A Kenyan court partially revised an advocate's taxed fees, confirming a Kshs. 500,000 instruction fee was reasonable but cutting the overpayment she must refund from Kshs. 60,046 to Kshs. 33,929.

What this practically means

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Executive summary

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The applicant advocate filed a chamber summons reference under Rule 11 of the Advocates Remuneration Order challenging the taxing officer's decision of 15th December 2022 in Machakos ELC Misc. Appl. E023 of 2021, which taxed her bill of costs at Kshs. 778,630 and found the respondent had overpaid her by Kshs. 60,046.41. The brief concerned registering title to LR No. 7885/5 (0.81 Ha excised from LR No. 7885) in the respondent's name following a confirmed succession grant. The applicant faulted the taxation on the nature of the services, complexity, subject matter value, undetermined items, interest, storage charges and the excess payment finding. The respondent opposed on grounds including an alleged professional undertaking and estoppel; her unsigned submissions were disregarded. The court held it would only interfere on an error of principle or where the award is manifestly excessive or too low. It found the brief was not complex, but that the taxing officer erred in holding the subject matter value unascertainable, estimating it at Kshs. 28,000,000 under paragraph 21; nevertheless the Kshs. 500,000 instruction fee was held reasonable. The court awarded Kshs. 8,440 for previously undetermined items and Kshs. 14,415 for items 41, 42, 46 and 54, which should have been taxed under Schedule 6. Interest and storage charges claims failed, the latter for want of any legal basis. The court recalculated the excess payment as Kshs. 33,928.6, set aside the earlier finding of Kshs. 60,046.4, and ordered each party to bear its own costs.

Key legal issues

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01

Whether the brief was one of exceptional importance or complexity warranting a special fee

Holding

The brief was not complex; transfer of the property from the deceased father's estate was by transmission and the applicant did not specify any complexity, difficulty or novelty

Reasoning

The brief arose from a confirmed succession grant and involved registering the respondent's share of the estate from LR No. 7885. Trips to government offices were accounted for as travel items. The court applied the test in Republic v Minister for Agriculture Ex Parte Samuel Muchiri W'Njuguna that complexity must be specifically demonstrated, including forensic responsibility and novelty, none of which the applicant established.

p. 8
02

Whether the taxing officer erred in finding the value of the subject matter unascertainable

Holding

Yes; the value was ascertainable by estimation under paragraph 21 as adjacent property sale prices existed, and the court estimated it at Kshs. 28,000,000

Reasoning

Although Schedule 5 provides no scale for subject matter value, the taxing officer must consider it. Failing stamp duty, estate duty or sale price evidence, the average market value may be estimated. With competing comparable sale prices of Kshs. 19 million and 16.8 million per acre, the court estimated Kshs. 14 million per acre, totalling Kshs. 28,000,000. Nonetheless the Kshs. 500,000 instruction fee award was held reasonable.

03

Whether the taxing officer failed to determine certain items of the bill of costs

Holding

Partially; most items were determined in her ruling, and the court itself awarded Kshs. 8,440 for items 18, 23, 29 and 32

Reasoning

The court found the taxing officer had ruled on items 63, 10, 11, 19, 21, 31, 35, 47 and 52 relating to court fees and travelling. Items 18, 23, 29 and 32 were undetermined, so the court assessed them itself under Schedule 5 rates, awarding a total of Kshs. 8,440.

p. 10
04

Whether items 41, 42, 46 and 54 were wrongly taxed under Schedule 5

Holding

Yes; those taxation-related items fall under Schedule 6 as contentious matters, and the court awarded Kshs. 14,415 for them

Reasoning

The brief was non-contentious (Schedule 5), but items relating to the taxation proceedings in Machakos ELC Misc. Application E023 of 2021 were contentious and governed by Schedule 6. The taxing officer's application of Schedule 5 was an error of principle, resulting in an under-assessment of Kshs. 14,075.

p. 10
05

Whether interest was payable from delivery of the bill of costs

Holding

No; without proof of service of the bill on the client before filing, no pre-taxation interest is claimable under paragraph 7

Reasoning

Paragraph 7 permits 14% interest from one month after delivery of the bill, provided the bill includes a claim for interest. The applicant produced no return of service showing the bill dated 28th May 2021 was served before filing. A demand letter of December 2020 did not amount to a bill of costs. The taxing officer's decision on interest was therefore undisturbed.

p. 11
06

Whether the excess payment finding should be disturbed

Holding

Yes; the excess payment was recalculated at Kshs. 33,928.6 instead of Kshs. 60,046.4

Reasoning

Adding the newly assessed items (Kshs. 22,515) plus 16% VAT (Kshs. 3,602.4), and noting the deposit of Kshs. 838,676.4 paid, the court recalculated the excess paid to the applicant as Kshs. 33,928.6 and substituted that figure for the taxing officer's finding.

p. 12

Legal principles established

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  • A court will not interfere with a taxing officer's discretionary decision unless an error of principle is shown or the fee awarded is manifestly excessive or too low
  • The value of the subject matter is a relevant matter that must be considered by a taxing officer in non-contentious matters; failure to consider it is an error of principle
  • Where subject matter value is not expressly stated, paragraph 21 of the Advocates Remuneration Order permits estimation via stamp duty value, estate duty value, last sale price, or average market value
  • An advocate cannot claim interest under paragraph 7 without evidence that the bill of costs was served on the client before filing for taxation
  • An advocate cannot be moved for valuation orders through a bill of costs; paragraph 13A powers must be invoked by a formal application before taxation

Court orders

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  1. 1.The decision of the taxing officer that there was an excess payment by the respondent in the sum of Kshs. 60,046.4 is set aside and substituted with an order that the excess payment made to the applicant by the respondent is Kshs. 33,928.6
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Advocates (Remuneration) (Amendment) Order, 2014Schedule V, Part II paragraph 1; Paragraph 5; Paragraph 13A; Paragraph 21; Rule 7; Rule 11(1) & (2); Schedule 6
  • Advocates Remuneration OrderParagraph 5; Paragraph 7; Paragraph 13A; Paragraph 21; Rule 7; Rule 11(1) & (2); Schedule 5; Schedule 6

Cases cited (10)

  • Vipul Premchand Haria v Kilonzo & Company Advocates
    [2020] eKLR
  • Price & Another v Hilder
    [1984] eKLR
  • Joreth Limited v Kigano & Associates
    [2002] 1 E.A 92
  • Otieno Ragot & Company Advocates v Kenya Airports Authority
    [2015] eKLR
  • DK Law Advocates v Zhong Gang Building Material Co. Ltd & Another
    [2021] eKLR
  • Kenya Tea Development Agency v J. M. Njenga & Co. Advocates
    [2011] eKLR
  • Lubullellah & Associates v N.K. Brothers Limited
    [2014] eKLR
  • Vishva Stone Suppliers Company Limited v RSR Stone
    [2006] eKLR
  • First American Bank of Kenya v Shah & Others
    [2002] 1 EA 64
  • Republic v Minister for Agriculture & 2 Others Ex Parte Samuel Muchiri W'Njuguna & 6 others
    [2006] eKLR
On appeal from
Taxing Officer, Environment and Land Court, Machakos
Machakos ELC Misc. Appl. E023 of 2021
Jurisdiction invoked
Rule 11 of the Advocates Remuneration Order (reference against taxing officer'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, "Mwangangi & Co Advocates v Mbaabu (Miscellaneous Application E008 of 2023) [2024] KEELC 5365 (KLR)", Case Analysis (2024). Chamber Summons dated 25th January 2023 (Reference from Machakos ELC Misc. Appl. E023 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5365/eng@2024-07-10

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