Mwangangi & Co Advocates v Mbaabu (Miscellaneous Application E009 of 2023) [2024] KEELC 5366 (KLR)
The bottom line
#A Kenyan court tripled a lawyer's instruction fees to Kshs 1.7 million, ruling property value can be estimated and advocates cannot charge for storing client documents.
What this practically means
#Executive summary
#Key legal issues
#Whether the brief was of exceptional complexity warranting a special fee
The brief was not complex; transfer of property from a deceased's estate to an heir is by transmission and the applicant did not specify any complexity, difficulty or novelty
The court held a party alleging complexity bears the burden of proving it with specificity, showing labour, difficulty and novelty, not merely volume of documents or value. Since the succession cause had been concluded and the brief was to register an heir's share by transmission preceded by subdivision, no complexity was demonstrated, and the taxing officer was right to find the brief not complex.
Whether the taxing officer erred in holding the value of the subject matter unascertainable
The taxing officer fell into an error of principle; the value was ascertainable by estimation under paragraph 21, and the court estimated Kshs. 112,000,000/= (Kshs. 14 million per acre for 8 acres)
Although Schedule 5 Part II provides no scale for subject matter value, the taxing officer must still consider it and may estimate it under paragraph 21. With evidence of sales of adjacent properties in 2016, the court estimated the average market value and found the award of Kshs. 500,000/= instruction fees too low, awarding Kshs. 1,700,000/= instead.
Whether a bill of costs can be the vehicle for invoking the taxing officer's power to order valuation under Paragraph 13A
No; an application for valuation must be made to the taxing officer before taxation, not by way of a statement in the bill of costs
Paragraph 13A empowers the taxing officer to direct proceedings necessary for determining disputes, but the officer must be properly moved by application. Statements in a bill of costs are matters for consideration during taxation and cannot found the exercise of that jurisdiction, so the applicant could not fault the taxing officer for not ordering a valuation she never applied for.
Whether interest was properly awarded only from one month after service of the certificate of taxation
The taxing officer's decision on interest was not disturbed; absent proof of service of the bill before filing, no pre-taxation interest is claimable
Paragraph 7 entitles an advocate to 14% interest from 30 days after delivery of the bill, which must include a claim for interest. The bill was dated 2021 and could not have been served in 2020, and no return of service was presented. A letter referring to costs due did not amount to a bill of costs, so no interest before taxation was payable.
Whether the awards on items 4, 18, 29, 33, 44 & 48 were correctly computed
The basis of taxation was correct but the computation was erroneous; the court substituted an average of Kshs. 7,500/= per travel, totalling Kshs. 45,000/= for those items
The taxing officer had explained her basis (Kshs. 1,000 per 20 minutes attendance and Kshs. 2,500 per hour of travel) in accordance with Schedule 5, but awarded inconsistent sums between Kshs. 3,250 and Kshs. 10,000. The court found an average of 3 hours per travel reasonable and computed Kshs. 7,500 per trip.
Whether the respondent was estopped from opposing the reference by a professional undertaking and agreement
The court did not uphold the estoppel ground; a certificate of costs is only final if not set aside, and the reference was a bona fide exercise of the right to be heard
The respondent argued equitable estoppel based on a professional undertaking and pending enforcement proceedings. The court did not found its decision on that ground, proceeding instead to determine the reference on its merits and varying the taxation.
Legal principles established
#- A court will not interfere with a taxing officer's discretionary award unless it is shown the decision was based on an error of principle or the award is manifestly excessive or too low as to justify such an inference
- In non-contentious matters where the value of the subject matter is not stated, the taxing officer may estimate it under paragraph 21 of the Advocates Remuneration Order using stamp duty value, estate duty value, last sale price, or estimated average market value
- Interest under paragraph 7 of the Advocates Remuneration Order runs from 30 days after service of the bill of costs, which must include a claim for interest, and requires proof of service
- An advocate is not entitled to storage charges for documents held as lien for unpaid fees
Court orders
#- 1.Set aside the taxing officer's award of Kshs. 500,000/= on instruction fees and awarded Kshs. 1,700,000/= as instruction fees
- 2.Awarded Kshs. 45,000/= in regard to items 4, 18, 29, 33, 44 & 48
- 3.VAT at 16% applied on the awards
- 4.Deducted the deposit paid by the respondent of Kshs. 838,676.65/=
- 5.Taxed the applicant's bill of costs dated 28th May 2021 in the sum of Kshs. 1,264,669/=
- 6.Each party to bear its own costs
- On appeal from
- Taxing Officer, Machakos ELC Misc. Appl. E022 of 2021
- Machakos ELC Misc. Appl. E022 of 2021
- Jurisdiction invoked
- Reference against a taxing officer's decision under the Advocates Remuneration Order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwangangi & Co Advocates v Mbaabu (Miscellaneous Application E009 of 2023) [2024] KEELC 5366 (KLR)", Case Analysis (2024). Machakos ELC Misc. Appl. E022 of 2021 (Reference against ruling of 15th December 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5366/eng@2024-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.