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ELRCDismissedChamber Summons application dated 8th September 2017· [2018] KEELRC 2371 (KLR)

Paul Otieno Mungla t/a Paul Mungla & Co. Advovates v Benjamin Malwa Langwen [2018] KEELRC 2371 (KLR)

Employment and Labour Relations Court
20 February 2018
HWHellen Wasilwa
1,382 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed it will rarely disturb how a Deputy Registrar taxes a lawyer's bill unless a clear error of principle is shown.

What this practically means

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Executive summary

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This is a ruling on a Chamber Summons dated 8th September 2017 brought under Paragraph 11(2) of the Advocates Remuneration Order, seeking to set aside or review the Deputy Registrar's taxation of 22nd August 2017 on items 1(a), (b) and 125 of a bill of costs dated 15th March 2017. The bill arose from an employment claim in which the Claimant, formerly Director in charge of Compliance and Enforcement at NEMA, successfully challenged his summary dismissal of 16th December 2013 and obtained reinstatement without loss of benefits, or in the alternative salary for three years and compensation equivalent to twelve months' salary, quantifiable at Kshs 15,835,312. The Applicant, the Claimant's advocate, contended that the Deputy Registrar erred in fixing the instruction fee at Kshs 299,874.68 contrary to Schedule VI of the Advocates Remuneration Order 2009, failed to consider relevant factors such as complexity, public interest and professional labour, omitted VAT on instruction fees, and thereby wrongly depressed item 125. The Respondent relied on Joreth Limited v Kigano & Associates and Nyangito & Co. Advocates v Doinyo Lessos Creameries Limited on taxation principles. Wasilwa J held that instruction fees are governed by Schedule VI and the subject matter of the suit, found that the Deputy Registrar was properly guided by law and principle, and declined to interfere with the taxing officer's discretion. The application was dismissed with costs to the Respondent on 20th February 2018.

Key legal issues

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01

Determination of the correct basis of instruction fee under Schedule VI of the Advocates Remuneration Order

Holding

The subject matter for instruction fee is the value of the suit; here the claimant sought damages for wrongful dismissal and was awarded reinstatement, or in the alternative salary for 3 years plus 12 months' compensation, quantifiable at Kshs 15,835,312

Reasoning

The court held that instruction fees are determined by reference to Schedule VI of the Advocates Remuneration Order and the subject matter of the suit as discerned from the pleadings and judgment. The Deputy Registrar was found to have been properly guided by the applicable provisions of the 2009 and 2014 Orders and the taxing discretion was properly exercised.

p. 3
02

Whether the taxing officer's discretion is open to interference on a reference under paragraph 11(2)

Holding

No interference was warranted; the Deputy Registrar properly examined her discretion

Reasoning

Relying on the authorities on taxation, the court reiterated that taxation is a matter of opinion based on experience and that interference lies only where there is an error of principle or an award so excessive or low as to amount to an injustice. The applicant demonstrated no such error.

p. 3

Legal principles established

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  • A court will not interfere with a taxing officer's award unless it is shown the decision was based on an error of principle or the fee awarded was manifestly excessive or so low as to amount to an injustice

Court orders

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  1. 1.The Chamber Summons application dated 8th September 2017 is dismissed
  2. 2.The taxation by the Deputy Registrar dated 22nd August 2017 is upheld and the Court declines to interfere with it
  3. 3.Costs of the application to the Respondent

Authorities

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Legislation

  • Advocates Remuneration OrderParagraph 11(2)
  • Advocates Remuneration Order 2009Schedule VI(A) paragraph 1; Schedule VI(B)
  • Advocates Remuneration Order 2014Schedule VI

Cases cited (3)

  • Joreth Limited -vs- Kigano & Associates
    Nairobi Civil Appeal No. 66 of 1999
  • Nyangito & Co. Advocates versus Doinyo Lessos Creameries Limited
    Misc. Application Number 843 of 2013
  • Republic –VS- Ministry of Agriculture & 2 others Ex-Parte Muchiri Wajuguna & 6 others
Jurisdiction invoked
Paragraph 11(2) of the Advocates Remuneration Order

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, "Paul Otieno Mungla t/a Paul Mungla & Co. Advovates v Benjamin Malwa Langwen [2018] KEELRC 2371 (KLR)", Case Analysis (2018). Chamber Summons application dated 8th September 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2371/eng@2018-02-20

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