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ELRCStruck OutMombasa Misc. Civil Application (ELRC) - Reference under rule 11 Advocates Remuneration Order, application dated 6 June 2023· [2023] KEELRC 2343 (KLR)

Hakika Transport Services Limited v Isaac Onyango & Company Advocates (Miscellaneous Application E022 of 2023) [2023] KEELRC 2343 (KLR)

Employment and Labour Relations Court
28 September 2023
1,175 words in judgment
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The bottom line

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A Kenyan court struck out a challenge to a legal fees decision because the company failed to attach the taxing officer's ruling and reasons.

What this practically means

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Executive summary

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Hakika Transport Services Limited filed an application dated 6 June 2023 under rule 11(1) and (2) of the Advocates Remuneration Order challenging a taxing master's ruling of 8 May 2023 on an Advocates Bill of Costs dated 28 September 2022 taxed at Kshs. 852,762.50. The applicant contended that the taxing master erred in applying Part B of the Order, wrongly taxed instruction fees at Kshs. 90,000 without a finding of complexity or public interest, wrongly taxed the bill as drawn, and failed to base instruction fees on the sum of Kshs. 264,000 said to have been awarded under a consent. It sought setting aside of objections dated 19 May 2023, confirmation of the ruling, or remission to another taxing master. The respondent submitted that a proper reference must be founded on the taxing officer's ruling and reasons, citing Kipkorir Titoo & Ikiara and Machira & Co. Advocates, and faulted the applicant for filing a separate cause without attaching the decision in Mombasa Misc. ELRC No. E066 of 2022. The court held that rule 11(2) requires the taxing officer's reasons to form the basis of the reference; since neither the Bill of Costs nor the ruling was attached, the application was bare and premature, and assessing the taxed items without context was impossible. The application was struck out with costs of Kshs. 15,000 all-inclusive awarded to the respondent. The substantive complaints on taxation were not determined.

Key legal issues

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01

Procedural adequacy of a rule 11 reference

Holding

The reference was fatally defective for failure to attach the taxing master's ruling and reasons, and for failure to link the decision in Mombasa Misc. ELRC No. E066 of 2022 to the application.

Reasoning

Rule 11(2) requires the taxing officer to record and forward reasons, and the objector's application to a judge must be based on those reasons. The court held that a proper reference must give the background of the matter and the ruling of the taxing master. Since neither the Bill of Costs nor the ruling dated 8 May 2023 was attached, the court could not assess the alleged errors in principle, and the application was left bare and premature.

p. 3
02

Alleged errors in principle in the taxation

Holding

The merits of the taxation objections were not reached because the application was struck out for procedural inadequacy.

Reasoning

The applicant argued that instruction fees should have been based on the sum awarded and that items on the bill were excessive. However, the court declined to go through the taxed items because doing so without the taxing master's ruling would be premature and without context. The substantive complaints on instruction fees, perusals, drawings, copies, attendance and service charges were therefore never determined.

p. 3

Legal principles established

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  • A reference under rule 11 must be founded on the taxing officer's decision and the reasons recorded and furnished under rule 11(2); without them the application is premature and without context.
  • An applicant seeking to set aside a taxation must place before the court the underlying bill of costs and ruling; failure renders the application bare.

Court orders

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  1. 1.The instant application is struck out
  2. 2.The respondent is awarded Kshs. 15,000 all-inclusive in costs

Authorities

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Legislation

  • Advocates Remuneration Orderrule 11(1) and (2)
  • Advocates (Remuneration) (Amendment) Order, 2014Schedule 6(1)(a); clause 2; Schedule 6; Schedule 7

Cases cited (4)

  • Friends Church (Quakers) Nairobi Yearly Meeting v Onsongo & Co. Advocates
    Misc. Civil Application No. 124 of 2019
  • Kipkorir, Titoo & Ikiara Advocates v Deposit Protection Fund Board
    [2005] eKLR
  • Machira & Co. Advocates v Arthur K. Magugu & another
    CA 199/2002 [2012] eKLR
  • Ahmednasir Abdikadir & Co. Advocates vs. National Bank of Kenya Limited (2)
    [2006] 1 EA 5
Jurisdiction invoked
Rule 11(1) and (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, "Hakika Transport Services Limited v Isaac Onyango & Company Advocates (Miscellaneous Application E022 of 2023) [2023] KEELRC 2343 (KLR)", Case Analysis (2023). Mombasa Misc. Civil Application (ELRC) - Reference under rule 11 Advocates Remuneration Order, application dated 6 June 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2343/eng@2023-09-28

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