Morgan Omusundi t/a Morgan Omusundi Law Firm v Muchina (Environment and Land Miscellaneous Application 32 of 2020) [2024] KEELC 5603 (KLR)
The bottom line
#The High Court in Eldoret threw out a lawyer's fee award because the Taxing Master used the wrong fee schedule, and sent the bill for taxation afresh.
What this practically means
#Executive summary
#Key legal issues
#Extension of time for filing a reference
The delay was satisfactorily explained by the Applicant's ill health, and most of the delay was occasioned by the Taxing Officer; time was extended.
The court applied the Salat principles. The reasons were requested within time; most of the 83-day delay was attributable to the DR; the Applicant's 19-day delay (18 days after receipt of reasons) was explained by documented hypertension and hospitalization, justifying enlargement of time under Paragraph 11(4) ARO.
Error of principle in taxation
The Taxing Officer applied Schedule 6B (High Court scale) to a subordinate court matter; the correct scale was Schedule 7, so the decision was set aside.
The Bill arose from Eldoret Chief Magistrate's E&L Case No. 127 of 2018, admitted by the Respondent. The ruling was based on Schedule 6B, applicable to High Court proceedings. Applying the wrong schedule is an error of principle justifying interference with the Taxing Officer's decision.
Existence of a retainer agreement
No valid retainer agreement was proved; a fee demand letter signed only by the Advocate does not satisfy Section 45 of the Advocates Act.
Section 45 requires a written agreement signed by the client. The 19th August 2020 letter was a demand signed only by the Advocate. The alleged KShs.125,000 part-payments were not substantiated with receipts; the burden of proving the retainer and the payments lay on the Applicant.
Legal principles established
#- For proceedings in the subordinate courts, Schedule 7 of the ARO is the applicable scale; taxing a subordinate court matter under Schedule 6B is an error of principle warranting interference.
- A retainer agreement under Section 45 of the Advocates Act must be in writing and signed by the client or authorized agent; the person alleging the retainer bears the burden of proving it.
Court orders
#- 1.The time for lodging the Reference is hereby extended and the reference herein is validated.
- 2.The decision of the Taxing Master/Deputy Registrar made on 12th May 2023 on the taxation of the Advocate-Client Bill of Costs is hereby set aside.
- 3.The Advocates-Client Bill of Costs be placed before a different Taxing Officer, for appropriate consideration.
- Jurisdiction invoked
- Paragraph 11(4) of the Advocates (Remuneration) Order 1962; Section 95 of the Civil Procedure Act, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Morgan Omusundi t/a Morgan Omusundi Law Firm v Muchina (Environment and Land Miscellaneous Application 32 of 2020) [2024] KEELC 5603 (KLR)", Case Analysis (2024). Chamber Summons application dated 18th September 2023 (Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5603/eng@2024-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.