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High CourtAllowedEldoret Miscellaneous Application No. 133 of 2005 (with consent applying to Misc. Applications Nos. 133-141 of 2005; ruling stated to apply to Nos. 133-142 of 2005)

Estate of the late Eustas Douglas Amayamu (trading as D.M. Amayamu & Co. Advocates) v Trans-National Bank Ltd

High Court of Kenya
13 February 2008
547 words in judgment
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The bottom line

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Kenya's High Court ruled a bank should not pay a deceased advocate's estate extra fees when it had already paid enough to cover the work actually done.

What this practically means

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Executive summary

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The Estate of the late Eustas Douglas Amayamu, who practised as D.M. Amayamu & Co. Advocates, filed bills for taxation under paragraph 13 of the Advocates (Remuneration) Order against Trans-National Bank Ltd, which had retained the deceased advocate to file several debt-recovery suits. Some suits were dismissed for want of prosecution. The taxing master found the bank had paid the firm Shs.396,500/=, taxed the bills using the 1993 Remuneration Order, and subtracted the amounts already paid. The bank brought this reference under paragraph 11. Kaburu Bauni J agreed the 1993 Order correctly applied since the suits were filed in 1996, before the 1997 amendments, and the payment finding was unchallenged. However, he held that the sums paid were commensurate with the work actually done: beyond filing the suits, the advocate took no serious steps, some cases were dismissed, and the bank had to engage and pay other advocates, effectively paying twice for each suit. Ordering further payment even after the advocate's death was unjust. The reference was allowed and the taxing master's ruling of 17 January 2006 was set aside; by consent the ruling applied to the related miscellaneous applications (Nos. 133-142 of 2005). Each party was ordered to bear its own costs. No authorities were cited.

Key legal issues

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01

Whether the taxing master erred in taxing fees and only subtracting amounts already paid

Holding

Yes - having found the advocate was paid sums commensurate with the work done, the taxing master should have declined any further payment, since the bank paid other advocates to complete the suits

Reasoning

The Deputy Registrar found the bank paid the firm Shs.396,500/= across the files, undisputed on reference. The advocate filed suits but took no serious further steps; some suits were dismissed for want of prosecution and the bank engaged and paid other advocates. Ordering further payment meant the bank paid twice per suit, which was unjust.

p. 2
02

Which version of the Advocates (Remuneration) Order applied

Holding

The 1993 Order applied because the suits were filed in 1996, before the 1997 amendments

Reasoning

The court upheld the taxing master's use of the 1993 Advocates Remuneration Order since the instruction and filing of suits predated the 1997 amendments; this finding was not disturbed.

p. 2

Legal principles established

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  • Where an advocate has already been paid sums commensurate with the work actually done, the taxing master should decline to order further payment
  • The applicable Remuneration Order version is the one in force when the suits were filed

Court orders

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  1. 1.The reference is allowed
  2. 2.The ruling on taxation delivered by the taxing master on 17th January 2006 is set aside
  3. 3.As agreed by counsel, the ruling applies to Misc. Appl. Nos. 133-142 of 2005
  4. 4.Each party to bear its/her own costs
On appeal from
High Court of Kenya (Taxing Master/Deputy Registrar, Eldoret)
Jurisdiction invoked
Paragraph 11 of the Advocates (Remuneration) Order (reference against a taxing master's decision)

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, "Estate of the late Eustas Douglas Amayamu (trading as D.M. Amayamu & Co. Advocates) v Trans-National Bank Ltd", Case Analysis (2008). Eldoret Miscellaneous Application No. 133 of 2005 (with consent applying to Misc. Applications Nos. 133-141 of 2005; ruling stated to apply to Nos. 133-142 of 2005). Source: 

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