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ELRCOtherNot stated in judgment (two references: Chamber Summons dated 11th March 2024 and Chamber Summons dated 21st May 2024)· [2024] KEELRC 1946 (KLR)

Gatu Magana Company Advocates LLP v Mwania (Miscellaneous Application 43 of 2023) [2024] KEELRC 1946 (KLR)

High Court of Kenya
29 July 2024
3,806 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan High Court sent a disputed legal fees bill back for re-taxation because both sides skipped the required step of asking the taxing officer for reasons.

What this practically means

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Executive summary

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This ruling of the High Court (Wasilwa J) determines two cross-references under Rule 11 of the Advocates Remuneration Order arising from the taxation of an Advocate-Client Bill of Costs dated 14th June 2023 by the Deputy Registrar (Hon. M Kyallo, DR) in a ruling dated 27th February 2024, which taxed the bill at Kshs. 3,535,258.60. The Client's reference (chamber summons dated 11th March 2024) sought setting aside and re-taxation of Item No. 152, taxed as drawn at Kshs. 1,900,000, arguing it should have been Kshs. 382,774 (one-half of the taxed-off sum on items 1-151), and correction of an alleged mathematical error inflating the bill by Kshs. 773,000, proposing a final figure of Kshs. 1,233,557 (later adjusted to Kshs. 1,343,672 to reflect VAT on all professional fees). The Advocate's reference (chamber summons dated 21st May 2024, filed out of time but admitted by leave) sought setting aside of the entire taxation on grounds that the value of the subject matter was misapprehended, the award was manifestly low, and VAT was wrongly restricted to instructions fees. The Client opposed both. The court found that neither applicant had sought the taxing officer's reasons for her findings as contemplated by Rule 11, that the Advocate's application was too generalized, and that the court could not interfere with matters within the taxing master's discretion. The court remitted the bill to the taxing mistress for further consideration and ordered costs in the cause. The ruling was delivered virtually on 29th July 2024.

Key legal issues

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01

Procedural prerequisite under Rule 11 of the Advocates Remuneration Order

Holding

Neither applicant complied with the procedural requirement of seeking the taxing officer's reasons for her decision before objecting, so the proper course was remission

Reasoning

The court examined Rule 11, noting that objections require notice of items and reasons from the taxing officer. Upon reviewing both applications and affidavits, the court found no indication the applicants wrote to the taxing officer on the items objected to. Without the reasons, the court could not properly assess the alleged errors of principle, leaving remission as the only recourse.

p. 7
02

Interference with the taxing master's discretion

Holding

The second reference was too generalized, seeking an overhaul of the bill including items within the taxing master's discretion, which the court cannot disturb

Reasoning

The Advocate's reference attacked the entire taxation as manifestly low without particularising specific items. The court noted the parties did not seek the taxing master's reasons and that generalised complaints about discretionary assessments cannot found judicial interference on a reference.

p. 7
03

VAT on instructions fees only

Holding

The respondent conceded, based on authority, that the taxing master erred in charging VAT on instructions fees only; VAT is chargeable on all professional fees except disbursements

Reasoning

The Client relied on Ngatia & Associates Advocates v Interactive Gaming & Lotteries Limited, which held VAT is a statutory charge on legal services rendered, payable to KRA, and not chargeable on disbursements. However, this issue fell within the remitted taxation rather than being finally determined by the court.

p. 6

Legal principles established

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  • Where an objector has not sought the reasons of the taxing officer for her findings, the recourse is to refer the bill back to the taxing officer for re-taxation or for issuance of reasons
  • A judge on reference cannot interfere with matters falling within the taxing master's discretionary jurisdiction

Court orders

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  1. 1.The Advocate-Client Bill of Costs is remitted back to the taxing mistress for further consideration
  2. 2.Costs in the cause
Jurisdiction invoked
Rule 11(2) and Rule 11(4) 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, "Gatu Magana Company Advocates LLP v Mwania (Miscellaneous Application 43 of 2023) [2024] KEELRC 1946 (KLR)", Case Analysis (2024). Not stated in judgment (two references: Chamber Summons dated 11th March 2024 and Chamber Summons dated 21st May 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1946/eng@2024-07-29

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