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ELRCDismissed· [2017] KEELRC 1789 (KLR)

Lumumba Mumma & Kaluma Advocates v Esau Rodgers Mumia [2017] KEELRC 1789 (KLR)

Employment and Labour Relations Court
10 February 2017
459 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed that taxing officers have wide discretion on fees when a case's value is unclear, and dismissed a challenge to a taxed advocate-client bill.

What this practically means

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Executive summary

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By a chamber summons under Rule 11(2) of the Advocates (Remuneration) Order and pursuant to a consent order recorded on 14th February 2013, the applicant sought to vary, review or set aside the taxation by the taxing master (Mrs. Wangila) made on 14th February 2013 in respect of items Nos. 1 and 56, and items Nos. 12, 15, 20, 24, 29, 33, 36 and 45 of a Bill of Costs. The applicant argued that as no specific amount was claimed and no value of the subject matter was indicated, the taxing master ought to have applied a minimum fee of Kshs.8,400 and reduced item 56 to Kshs.25,000; and that the attendances, since no time taken was indicated, should be adjudged routine matters under Schedule III paragraph 7 and reduced from Kshs.1,000 to Kshs.210 each. The respondent, through a replying affidavit of Mr. Thomas K'Bahati, advocate, opposed the application, relying on Joreth Limited v Kigano & Associates for the proposition that where the value of the subject matter cannot be determined from pleadings, judgment or settlement, the taxing officer may exercise discretion taking into account the nature and importance of the case, interests of the parties, general conduct of the proceedings and directions of the trial judge. He further showed that the attendances were for effecting service, chargeable at a minimum of Kshs.1,000 under Schedule VI paragraph 9. The court found that the applicant disclosed no basis to vary, review or set aside the taxation and dismissed the application with costs on 10th February 2017.

Key legal issues

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01

Whether the court should interfere with the taxing master's assessment of instruction fees where the value of the subject matter was not indicated

Holding

The court declined to interfere, holding that the taxing master properly exercised discretion and the applicant disclosed no basis for variation, review or setting aside

Reasoning

The applicant argued that absent an indicated value of the subject matter, a minimum fee of Kshs.8,400 should apply and item 56 be reduced to Kshs.25,000. Relying on Joreth Limited v Kigano & Associates as cited by the respondent, the court found that where the value of the subject matter cannot be determined, the taxing officer may exercise discretion taking into account the nature and importance of the case, the interests of the parties, the general conduct of proceedings and any directions of the trial judge. The taxing master had indicated reasons for the taxed amounts, and the applicant disclosed no basis for interference.

p. 1
02

Whether attendances under items 12, 15, 20, 24, 29, 33, 36 and 45 were routine matters chargeable at Kshs.210

Holding

No - the attendances were for effecting service, chargeable at a minimum of Kshs.1000 under Schedule VI paragraph 9, and the applicant showed no basis for interference

Reasoning

The applicant contended the attendances fell under Schedule III paragraph 7 as routine matters, reducible from Kshs.1,000 to Kshs.210 since no time taken was indicated. The respondent showed that the Bill of Costs indicated the purpose of the attendance was to effect service, and only item No. 15 was taxed as drawn. Schedule VI paragraph 9 of the Advocates Remuneration Order (2000) fixes a minimum of Kshs.1,000 for service. The court found no disclosed basis to disturb the taxation on these items.

p. 2

Legal principles established

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  • Where the value of the subject matter cannot be determined from pleadings, judgment or settlement, the taxing officer is entitled to use discretion in assessing instruction fees taking into account the nature and importance of the case, interests of the parties, general conduct of proceedings and any directions of the trial judge
  • Fees chargeable for service under Schedule VI paragraph 9 of the Advocates Remuneration Order are at a minimum of Kshs.1000

Court orders

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  1. 1.The application is dismissed with costs.

Authorities

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Legislation

  • Advocates (Remuneration) OrderRule 11(2)
  • Advocates Remuneration OrderSchedule III paragraph 7
  • Advocates Remuneration Order, (2000)Schedule VI paragraph 9

Cases cited (1)

  • Joreth Limited Vs. Kigano & Associates
    Civil Appeal No. 66 of 1999 (2002) IEA 92
Jurisdiction invoked
Rule 11(2) of the Advocates (Remuneration) Order read with the consent order recorded on 14th February 2013

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, "Lumumba Mumma & Kaluma Advocates v Esau Rodgers Mumia [2017] KEELRC 1789 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1789/eng@2017-02-10

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