Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
High CourtDismissedCivil Case No 816 of 1987

Chiriatti v Kahlili & others

High Court of Kenya
2 January 1991
MOMolo
1,423 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's High Court confirmed that a lawsuit needing only formal proof of damages counts as undefended, so advocates cannot claim higher instruction fees for it.

What this practically means

#

Executive summary

#
The decree holder's advocate objected, by Chamber Summons under rule 11(2) of the Advocates (Remuneration) Order, to the taxing officer's decision taxing off Shs 13,000 from the claimed Shs 25,000 instruction fee, leaving Shs 12,000. The suit arose from a fatal road traffic accident claim under the Law Reform Act and Fatal Accidents Act against three defendants; only the third defendant filed a defence, and interlocutory judgment with formal proof before Bosire J produced damages of Shs 1,604,795.90. Counsel argued the formal proof made the matter a 'defended cause' attracting higher fees under rule 1A(b) of Schedule VI rather than paragraph (a). Molo J held the court may interfere with a taxing officer's award only where it is so high or so low as to cause injustice, or where the taxing officer erred in law. He held that the need to prove damages does not make an undefended suit defended: neither the first nor second defendant filed a defence or denied liability, so paragraph (a) applied. The award was not unjustly low - the taxing officer had allowed Shs 12,000 against a minimum scale of Shs 11,023 with no error of principle alleged - and the judge's own inclination to allow slightly more was no ground for interference. The application was dismissed with costs.

Key legal issues

#
01

Whether a matter proceeding to formal proof is a defended cause under Schedule VI rule 1A(b) of the Advocates (Remuneration) Order

Holding

No - where defendants neither appear nor deny liability, the case falls under paragraph (a), not (b), notwithstanding that damages must be formally proved

Reasoning

The court held that the requirement to prove damages does not convert an undefended suit into a defended one. Neither the first nor second defendant filed a defence or denial of liability, and the hearing before Bosire J was ex parte. Had the law giver intended otherwise, words to that effect would have been added after 'filed' in paragraph (b).

p. 1
02

Circumstances in which the High Court may interfere with a taxing officer's decision

Holding

Only where the award is so high or so low as to amount to injustice, or where the taxing officer made an error of law

Reasoning

Relying on Premchand Raichand Ltd v Quarry Services of East Africa Ltd (No 3), the court restated the narrow grounds for interference. The taxing officer allowed Shs 12,000 against a minimum scale fee of Shs 11,023; no error of principle was alleged, and the fact that the judge might have allowed slightly more was not a ground for interference.

p. 1

Legal principles established

#
  • The High Court may interfere with a taxing officer's award only where it is so high or so low as to amount to injustice, or where the taxing officer erred on a point of law.
  • A suit proceeding to formal proof against defendants who have filed no defence or denial of liability is not a defended cause for remuneration purposes.

Court orders

#
  1. 1.Application dismissed with costs
Jurisdiction invoked
Rule 11(2) of the Advocates (Remuneration) Order - objection to a taxing officer's decision

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Chiriatti v Kahlili & others", Case Analysis (1991). Civil Case No 816 of 1987. Source:

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