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ELRCDismissedNot stated in the judgment (application dated 29th August 2022)· [2023] KEELRC 1423 (KLR)

Judicial Service Commission v Njora (Miscellaneous Cause E134 of 2022) [2023] KEELRC 1423 (KLR)

High Court of Kenya
2 May 2023
2,117 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court dismissed the Judiciary's challenge to a Kshs 1.16 million advocate fee award, confirming judges rarely disturb a taxing officer's decision unless it errs on principle.

What this practically means

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Executive summary

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The Applicant, the Chief Registrar of the Judiciary, moved the High Court by application dated 29th August 2022 under Rule 11 of the Advocates (Remuneration) Order seeking to set aside a taxation ruling of the Deputy Registrar delivered on 19th July 2022, which taxed the Respondent advocate's party and party bill of costs at Kshs. 1,164,117/-, and to remit the matter for fresh taxation before a different taxing master. The Applicant asserted it was not informed of the date of the taxation ruling. The Respondent filed a preliminary objection contending the application offended the mandatory provisions of Rule 11, the reference having been filed 34 days outside the 14-day period without notice of the items objected to, thus divesting the court of jurisdiction. The court treated the preliminary objection as part of the reply. On jurisdiction, the court invoked the discretion in Rule 11(4) to enlarge time even after expiry, holding the reference properly before it. On the merits, applying the principle that a judge will not interfere with a taxing officer's decision absent an error of principle, the court found no improper exercise of discretion: the Taxing Master correctly applied Schedule 6 of the 2014 Order, relied on Jerioth Limited v Kigano and Associates to rationalise the instruction fees, and taxed off Kshs. 5,400,000/- from the Kshs. 6,000,000/- claimed. The court held the taxed sum reasonable, avoided unjust enrichment, and found service of notice was proved, adding that lack of service would not of itself vitiate taxation. The reference was dismissed with costs to the Respondent on 2nd May 2023 (Nzioki wa Makau, J).

Key legal issues

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01

Jurisdiction over a reference filed outside the 14-day period under Rule 11

Holding

The court exercised its discretionary power under Rule 11(4) to enlarge time, so the reference was properly before the court despite being filed 34 days outside the limitation period

Reasoning

The Respondent argued the reference was 34 days late without leave, divesting the court of jurisdiction per the Lillian S principle. The court however held that Rule 11(4) confers a discretion to enlarge time even after expiry of the enlarged period, and exercised that power, rendering the reference properly before the court. The preliminary objection was treated as part of the reply and did not defeat jurisdiction.

p. 4
02

Whether the Taxing Master erred in principle in assessing instruction fees

Holding

No improper exercise of discretion was discerned; the Taxing Master correctly applied Schedule 6 of the 2014 Advocates Remuneration Order and reasoned authority in reducing instruction fees from Kshs. 6,000,000/-

Reasoning

The Taxing Master appreciated the minimum fee of Kshs. 100,000/-, relied on Jerioth Limited v Kigano and Associates to rationalise the increase, and taxed off Kshs. 5,400,000/-. The court found the resulting total of Kshs. 1,164,117/- neither unreasonable nor usurious, satisfying the fairness principles in the Muchiri W'Njuguna case.

p. 4
03

Effect of absence of notice of the taxation ruling

Holding

Service of notice of the taxation ruling was shown by the evidence, and in any event lack of notice would not vitiate the taxation because the same principles would guide the court

Reasoning

The Applicant claimed it was not informed of the date of the taxation ruling. Evidence from Mr. Jason Okemwa showed notice was served. The court held hypothetically that absence of service would not vitiate taxation, as the principles for appreciating the taxation would be identical.

p. 4

Legal principles established

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  • On a reference from taxation, a judge will not interfere with the taxing officer's discretion unless the taxing officer erred in principle
  • The court's power under Rule 11(4) to enlarge time applies notwithstanding that the time sought to be enlarged has already expired
  • Failure to serve notice of the taxation ruling does not of itself vitiate a taxation

Court orders

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  1. 1.The reference is found to be without merit and accordingly dismissed
  2. 2.Costs to the Respondent

Authorities

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Legislation

  • Advocates (Remuneration) OrderRule 11(1), (2), (3), (4)
  • Advocates Remuneration Order 2014Schedule 6
  • Advocates ActSection 51
  • Civil Procedure ActSection 27
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (9)

  • National Social Security Fund Board of Trustees v Kenya Tea Growers Association & 14 others
    (Civil Appeal 656 of 2022) [2023] KECA 80 (KLR)
  • Samuel Kamau Macharia v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
  • N. W. Amolo t/a Amolo Kibanya & Co. Advocates v Samson Keengu Nyamweya
    [2016] eKLR
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] 1 KLR
  • Odinga & 16 others v Ruto & 10 others; Law Society & 4 others (Amicus Curiae)
    (Presidential Petition E005, E001, E003, E004, E007 & E008 of 2022) [2022] KESC 54 (KLR)
  • Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others
    [2014] eKLR
  • Kipkorir, Tito & Kiara Advocates v Deposit Protection Fund Board
    [2005] eKLR
  • Jerioth Limited v Kigano and Associates
    [2002] 1 EA 92
  • Republic v Minister for Agriculture & 2 others Ex-parte Samuel Muchiri W'Njuguna & 6 others
    [2006] eKLR
Jurisdiction invoked
Rule 11(4) of the Advocates (Remuneration) Order - discretionary power to enlarge time for a reference to a judge

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, "Judicial Service Commission v Njora (Miscellaneous Cause E134 of 2022) [2023] KEELRC 1423 (KLR)", Case Analysis (2023). Not stated in the judgment (application dated 29th August 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1423/eng@2023-05-02

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