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ELRCPartially AllowedChamber Summons dated 28th July 2021 (arising from ELRC Cause Number 1252 of 2014)· [2022] KEELRC 438 (KLR)

Jane Ngetho t/a J. W. Ngetho & Company Advocates v Violet Mukabi Joram [2022] KEELRC 438 (KLR)

Employment and Labour Relations Court
22 March 2022
JGJacob Gakeri
2,849 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is a reference from a taxing officer's decision, brought by chamber summons under the Advocates Act and the Advocates Remuneration Order 2014. The Applicant advocate sought an order that her legal fees equal the party and party costs agreed in ELRC Cause No. 1252 of 2014 (Kshs.209,978/-) increased by 50%, i.e. Kshs.333,864/-, contending the Deputy Registrar erred by taxing her advocate-client bill at Kshs.110,712.50 contrary to the mandatory provisions of the Remuneration Order. She relied on the Schedule VI paragraph B minimum-fee rule and authorities including Mbogo v Shah, D. Njogu and Central Bank of Kenya v Makhecha. The Respondent maintained that the Deputy Registrar was the only competent taxing officer, that no enforceable agreement on fees existed, and that the Court should not interfere absent demonstrated error, citing Alice Yano and Premchand Raichand. The Court framed a single issue: whether it should interfere with the taxing officer's exercise of discretion. Applying Joreth Ltd v Kigano, Kipkorir Titoo & Kiara and related authorities, it held that a taxing officer exercises judicial discretion not normally disturbed absent error in principle, and that failure to apply the Remuneration Order's requirements is such an error. The Respondent did not substantively answer the Applicant's contention of undertaxation contrary to the Order. The Court allowed the reference, set aside the taxation of 22nd June 2021 and remitted the bill for taxation before a different taxing officer, with each party bearing its own costs. It did not itself fix the fee at Kshs.333,864/-.

Key legal issues

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Whether the taxing officer erred in principle in taxing the advocate-client bill of costs contrary to the Advocates Remuneration Order 2014

Holding

Yes. The Applicant's contention that the bill was taxed inconsistently with the mandatory provisions of the Remuneration Order was not substantively rebutted, and under the Kipkorir, Titoo & Kiara principles failure to comply with the Order is an error of principle justifying the Court's interference.

Reasoning

The Court restated the principles from Mbogo v Shah, Joreth Ltd v Kigano, Kipkorir Titoo & Kiara and related authorities: a taxing officer exercises judicial discretion which a judge on reference will not disturb absent error in principle. Error in principle includes failure to apply the formula in Schedule VI or to consider relevant circumstances. The Applicant contended the advocate-client bill was taxed inconsistently with the mandatory minimum (party and party costs increased by 50%); the Respondent did not substantively respond to that contention. The Court found a justifiable basis for interference and remitted the bill.

p. 4

Legal principles established

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  • A court will not interfere with a taxing officer's discretion unless the taxing officer erred in principle; failure to apply the Remuneration Order's requirements is an error of principle.

Court orders

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  1. 1.The taxation of bill of costs dated 22nd June 2021 is set aside and remitted for taxation by a different taxiing officer
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Advocates ActCap 16, paragraph 11(2), 57
  • Advocates Remuneration Order 2014Schedule VI paragraph B; Schedule VIB
  • Advocates (Remuneration) (Amendment) Order 2014
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d), 48

Cases cited (15)

  • Mbogo & another v Shah
    [1968] EA 15
  • Peter Muthoka & another v Ochieng & 3 others
    [2019] eKLR
  • Central Bank of Kenya v Makhecha & Company Advocates
    [2019] eKLR
  • D. Njogu and Company Advocates v Kenya National Capital Authority
    [2005] eKLR
  • Alice Yano t/a Yano & Co. Advocates v Rebecca Nadupoi Supeyo & another
    [2021] eKLR
  • Premchand Raichand Ltd & another v Quarry Services East Africa Ltd & another
    [1972] EA 162
  • Bank of Uganda v Banco Arabe Espariol
    Civil Application No. 29 of 2019
  • Joreth Limited v Kigano & Associates
    [2002] eKLR
  • Macharia & Co Advocates v Magugu
    [2002] EA 428
  • Wilfred N. Konosi t/a Konosi & Co. Advocates v Flamco Limited
    [2017] eKLR
  • First American Bank of Kenya v Shah and others
    [2002] E.A.L.R 64
  • Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board
    [2005] eKLR
  • Arthur v Nyeri Electricity Undertaking
    [1961] EA 497
  • Devshi Dhanji v Kanji Naran Patel (No. 2)
    [1978] KLR 243
  • Otieno, Ragot & Company Advocates v Kenya Airports Authority
    [2021] eKLR
Jurisdiction invoked
Advocates Act, Cap 16, paragraph 11(2) and 57 of the Advocates Remuneration Order 2014

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jane Ngetho t/a J. W. Ngetho & Company Advocates v Violet Mukabi Joram [2022] KEELRC 438 (KLR)", Case Analysis (2022). Chamber Summons dated 28th July 2021 (arising from ELRC Cause Number 1252 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/438/eng@2022-03-22

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