Mwendwa Mwinzi & Associates Advocates v Muraya (Environment and Land Miscellaneous (Reference) Application 137 of 2023) [2024] KEELC 5816 (KLR)
The bottom line
#A Kenyan High Court dismissed a client's challenge to legal fees because his objection didn't specify which costs items he disputed.
What this practically means
#Executive summary
#Key legal issues
#Competency of the reference under Rule 11(1) of the Advocates (Remuneration) Order
The notice of objection to taxation dated 21st May 2024 was omnibus, failed to specify the items objected to, and was therefore fatally incompetent and void, robbing the court of jurisdiction to entertain the reference.
Rule 11(1) requires the objecting party to give notice in writing within 14 days specifying the items of taxation objected to, so the taxing officer can give reasons on those items. The Applicant's notice referred only to 'the contested items on the said bill' without naming them. Relying on Machira & Co. Advocates v Arthur K. Magugu and Murgor & Murgor Advocates v Kenya Airports Authority, the court held vague notices defeat the expedition intended by the rules and such a notice is fatally defective.
Whether the taxing officer committed an error of principle in assessing instruction fees on a subject matter value of Kes.30 Million
No error of principle: the value of the suit property was evident on the face of the Further amended Plaint dated 22nd June 2017, and the taxing officer correctly used it as the basis for computing instruction fees.
An applicant seeking to impeach a certificate of taxation must demonstrate an error of principle, reliance on extraneous factors, or failure to consider relevant factors. Prayer (d) of the Further amended Plaint declared compensation for the suit property at Kes.30 Million, so the taxing officer applied the correct starting point per Joreth Ltd v Kigano & Associates and Peter Muthoka v Ochieng. The Applicant's contention of a value of Kes.1.8 Million was made in vacuum and devoid of merit.
Filing of the reference before obtaining the taxing officer's reasons
Having filed the reference without the reasons for taxation, the reference was misconceived and hollow; the Applicant should have awaited the reasons and it was the Applicant's burden to demonstrate error.
The court observed that where reasons for taxation have not been supplied, the proper course is to await them before assailing the taxation. Filing a reference based on omnibus allegations without reasons, without identifying how the taxation was erroneous, discharged no evidentiary burden and warranted dismissal even on the merits.
Legal principles established
#- A notice of objection to taxation must specify the items of the bill of costs objected to; an omnibus notice is fatally defective and renders any reference based on it incompetent, and such notice is a jurisdictional pre-requisite.
- A judge on reference will not interfere with the taxing officer's discretion absent an error of principle; questions of quantum are for the taxing officer except in exceptional cases.
Court orders
#- 1.The chamber summons application (Reference) dated 21st May 2024 is dismissed with costs to the Advocate/Respondent.
- 2.Costs certified in the sum of Kes.25,000/= only.
- Jurisdiction invoked
- Rule 11 of the Advocates (Remuneration) Order 2014 (reference from taxing officer's decision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwendwa Mwinzi & Associates Advocates v Muraya (Environment and Land Miscellaneous (Reference) Application 137 of 2023) [2024] KEELC 5816 (KLR)", Case Analysis (2024). Chamber Summons Application [Reference] dated 21st May 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5816/eng@2024-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.