Safepak Limited v KTK Advocates (Miscellaneous Application 60 of 2019) [2023] KEELRC 2636 (KLR)
The bottom line
#The High Court threw out a Kshs 403,520 costs award against a client because the taxing officer raised the fees without explaining why.
What this practically means
#Executive summary
#Key legal issues
#Whether equating a response to demand letters with a formal written legal opinion was an error in principle
It was an error; a response to demand letters and a formal legal opinion are different outcomes requiring different levels of intellectual effort
The taxing master had equated the reply to demand letters with a formal written opinion with a basic fee of not less than Kshs 35,000. Relying on Black's Law Dictionary's definition of a legal opinion as a written interpretative statement applying to a specific factual situation, the court found no basis for the equation, since the two outcomes did not demand the same intellectual effort and industry. This amounted to an error in principle justifying interference.
Whether the unexplained increase of taxed costs by half was an error in principle
Yes; the taxing master offered no explanation for the increase, contrary to the requirement that such a decision be justified
The applicant relied on Sophie Chirchir v Africa Merchant Assurance Co Ltd, where Odunga J held that a decision to increase or reduce basic fees must be justified. The taxing master's ruling gave no reasons for doubling the taxed costs by half. An unexplained exercise of discretion constitutes an error in principle, giving the court legitimate reason to interfere with the taxation.
Whether the reference was out of time under rule 11
Not determined; counsel agreed the reference was filed within time
Although the respondent's replying affidavit alleged non-compliance with the rule 11 timelines, counsel for both parties agreed in oral submissions that the reference was filed within time. The court therefore declined to spend time on the issue and proceeded to determine the substantive grievance.
Legal principles established
#- A taxing master's decision to increase or reduce basic fees must be justified; an unexplained increase amounts to an error in principle warranting interference
- The aim of taxation of instruction fees is reasonable compensation for professional work done without unjust enrichment
Court orders
#- 1.The subject taxation rendered on March 14, 2023 is set aside
- 2.The matter is remitted for re-taxation before another taxing master, other than Hon Fredrick M. Nyamora
- Jurisdiction invoked
- Reference against a taxing master's decision under rule 11 of the Advocates (Remuneration) Order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Safepak Limited v KTK Advocates (Miscellaneous Application 60 of 2019) [2023] KEELRC 2636 (KLR)", Case Analysis (2023). Chamber Summons dated May 10, 2023 (Advocate/Client Bill of Costs Reference following taxation of March 14, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2636/eng@2023-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.