Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedChamber Summons dated 20th March 2024 (reference from ruling of 6th March 2024)· [2024] KEELC 6416 (KLR)

Mbugua t/a Ngure Mbugua & Co. Advocates v Mumbi House Pharmaceuticals (K) Ltd (Environment and Land Miscellaneous Application E095 of 2023) [2024] KEELC 6416 (KLR)

High Court of Kenya
3 October 2024
4,835 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

#

Kenya's High Court confirmed advocates earn full instruction fees even on incomplete land deals, but the taxing officer must follow the correct Remuneration Order formula.

What this practically means

#

Executive summary

#
The Client/Applicant, John Ngaruro Mugo, brought a reference by chamber summons dated 20th March 2024 challenging the certificate of taxation of 6th March 2024 by Hon. Vincent Kiplagat, Deputy Registrar, in which the Advocate/Respondent was awarded instruction fees on an Advocate Client Bill of Costs dated 4th April 2023 relating to the purchase of L.R No. Nairobi Municipality Block 209/4917/4. The Applicant contended that the advocate only prepared and engrossed the sale agreement and never concluded the conveyance, so costs should have been taxed under Rule 18(f)/Schedule 5 of the Advocates Remuneration Order rather than Schedule 1, and that the award was an error of principle amounting to unjust enrichment. The Respondent maintained that instruction fees are earned on receipt of instructions and are payable in full irrespective of completion. The court framed three issues. It held, first, that the taxing officer was right to apply Schedule 1, since the advocate was retained for a transaction concerning the purchase of registered land, and instruction fees accrue upon retention regardless of whether the assignment is completed. Secondly, however, the court found the taxing officer committed an error of principle by adopting an unexplained 0.13% of the property value as the benchmark, contrary to the graduated cumulative formula prescribed by Schedule 1. Thirdly, invoking Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board, the court allowed the application, set aside the certificate of taxation and remitted the bill for re-taxation before a taxing officer other than Hon. Vincent Kiplagat, with costs of the application deferred to await the outcome of the taxation.

Key legal issues

#
01

Applicable schedule for taxing instruction fees on an incomplete land sale/purchase transaction

Holding

Schedule 1 applies; the taxing officer was correct to use Schedule 1 notwithstanding the incomplete transaction

Reasoning

The advocate was retained for a specific transaction involving the purchase of registered immovable property. Schedule 1 governs scale fees on sales and purchases affecting land. Instruction fees are earned upon receipt of instructions and are not affected by subsequent events or progress of the work. The client cannot escape full instruction fees merely because it took away the brief. The court relied on Ratemo Oira, Joreth Ltd, Insurance Regulatory Authority and Kimani Richu.

p. 6
02

Whether the taxing officer applied the correct formula under Schedule 1

Holding

No - the taxing officer's use of 0.13% of the property value as the benchmark was an error of principle vitiating the certificate of taxation

Reasoning

Schedule 1 prescribes a graduated cumulative calculation: 2% on the first Kshs.5 million, 1.5% on the balance up to 100 million, 1.25% up to 250 million and 1% on the balance. The taxing officer instead taxed instruction fees at 0.13% of the subject matter's value, a benchmark found nowhere in the Remuneration Order. The court could not discern the origin of that figure and held it clearly erroneous, citing Kipkorir, Titoo & Kiara on interference for errors of principle.

p. 8
03

Appropriate orders upon finding an error of principle

Holding

The certificate of taxation should be set aside and the bill remitted to a different taxing officer for re-taxation under Schedule 1

Reasoning

Taxation is the exclusive technical preserve of the taxing officer. Following Kipkorir, Titoo & Kiara and Kimani Richu, where a judge finds an error of principle the general practice is to remit quantum for decision by a taxing officer other than the one impeached. The court therefore set aside the certificate and remitted the entire Advocate Client Bill of Costs dated 4th April 2023 for re-taxation before a taxing officer other than Hon. Vincent Kiplagat.

p. 9

Legal principles established

#
  • Instruction fees accrue the moment the advocate is retained, regardless of whether the assignment is concluded
  • Where a transaction concerns sale/purchase of registered land, instruction fees are chargeable under Schedule 1 of the Advocates Remuneration Order even where the transaction is not completed
  • A judge on a reference should, upon finding an error of principle, remit the bill for re-taxation by a different taxing officer

Court orders

#
  1. 1.The chamber summons application dated the 20th March 2024 be and is hereby allowed.
  2. 2.The certificate of taxation arising from the Ruling delivered on the 6th March 2024 be and is hereby set aside.
  3. 3.The Advocate Client Bill of Costs dated the 4th April 2023 be and is hereby remitted for taxation before a taxing officer other than Hon. Vincent Kiplagat.
  4. 4.Costs of the Application shall await the outcome of the taxation.

Authorities

#

Legislation

  • Advocates Remuneration OrderSchedule 1 (Scale fees on sales and purchases affecting land)
  • Advocates Remuneration OrderRule 18(f) / Schedule 5 (as cited by the Applicant)
  • Advocates Act, Chapter 16, Laws of KenyaSections 57 and 58

Cases cited (13)

  • Moronge & Co Advocates v KPA
    [2014] eKLR
  • Desai Sarvia & Palan Advocates v Tausi Assurance Co Ltd
    [2017] eKLR
  • Ratemo Oira & Co Advocates v Magereza Sacco Society Ltd
    [2019] eKLR
  • Republic v Ministry of Agriculture & 2 Others [Ex-parte Muchiri Wanjuguna & 2 Others]
    [2006] eKLR
  • Kagwima Kangerthe & Co Advocates v A. A Kawir Transporters Ltd
    [2014] eKLR
  • Noly K Musango v Peter Odanga & Another
    [2021] eKLR
  • Insurance Regulatory Authority v Waweru Gatonye & Co Advocates
    [2021] eKLR
  • Joreth Ltd v Kigano & Associates
    [2002] eKLR
  • Kimani Richu & Associates Advocates v Centurion Holdings Ltd
    [2018] eKLR
  • Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board
    [2005] eKLR
  • Arthur v Nyeri Electricity Undertaking
    [1961] EA 497
  • Devhi Dhanji v Kanji Naran Patel (No. 2)
    [1978] KLR 243
  • D'Souza v Ferrao
    [1960] EA 602
Jurisdiction invoked
Reference from the decision of a taxing master under the Advocates Act and Advocates Remuneration Order (specific provision not stated in the judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mbugua t/a Ngure Mbugua & Co. Advocates v Mumbi House Pharmaceuticals (K) Ltd (Environment and Land Miscellaneous Application E095 of 2023) [2024] KEELC 6416 (KLR)", Case Analysis (2024). Chamber Summons dated 20th March 2024 (reference from ruling of 6th March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6416/eng@2024-10-03

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