Mumias Sugar Company Limited v Professor Tom Ojienda & Associates Limited
The bottom line
#Advocates can submit bills before finishing a case, but the Taxing Officer must follow strict rules when calculating fees and proving expenses.
What this practically means
#Executive summary
#Key legal issues
#Whether an advocate may lodge a bill for taxation before completing the brief or ceasing to act
The law does not bar an advocate from lodging a bill before completing the brief or ceasing to act, though it may be undesirable in some instances
The court adopted Ochieng J's holding in Mumias Sugar v Tom Ojienda & Associates that no law expressly prohibits such taxation, while acknowledging Gichuki King'ara's caution that premature taxation could create a bad precedent and multiplicity of taxations. The jurisdictional objection therefore failed.
Whether failure to set out the basic instruction fee before increasing it is an error of principle
Yes - the taxing officer must first set out the basic fee before venturing to increase or reduce it; failure to do so is an error of principle
The applicable Schedule VI paragraph J provided a basic fee of Kshs.6,300/=. The taxing officer awarded Kshs.5,000,000/- (about 793 times the basic fee) without first setting out the basic fee, so the court could not tell whether the increment was appreciated. Following First American Bank v Shah, this was an error of principle justifying interference.
Whether awarding disbursements without proof of payment is an error of principle
Yes - disbursements must be verified by proof of payment before being awarded
Disbursements are monies actually paid out; the taxing officer awarded Kshs.100,000/- without proof, which was not controverted. This constituted a second error of principle warranting setting aside of that item.
Timeliness of the reference
The reference was either within time or, if late, the delay was not inordinate and was explained; time was extended
The letter of 30th April 2018 requesting the ruling could be deemed the notice under paragraph 11(1), received 7th May 2018 within 14 days. If the application of 4th October 2018 was late, the delay was not inordinate and was explained, so the court extended time.
Legal principles established
#- A judge on a reference will not normally interfere with a taxing officer's discretion unless the taxing officer erred in principle
- Where the value of the subject matter is not ascertainable from pleadings, judgment or settlement, the taxing officer has a discretion to assess instruction fees, but where the Remuneration Order provides a basic fee, the taxing officer should set it out first
- Disbursements are monies actually paid out and must be verified by proof of payment before being awarded
Court orders
#- 1.Time enlarged and the Chamber Summons of 3rd October 2018 deemed filed on time
- 2.The reference is allowed
- 3.The decision of 27th April 2018 set aside in respect of instruction fees and disbursements
- 4.The Advocate's Bill of Costs to be placed before a different Taxing Officer for reconsideration of instruction fees and disbursements
- 5.Costs of the reference to the client
- On appeal from
- High Court of Kenya (Taxing Officer)
- Misc. Cause No. 168 of 2017
- Jurisdiction invoked
- Paragraph 11 of the Advocates Remuneration Order (reference from taxation by chamber summons to a judge)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mumias Sugar Company Limited v Professor Tom Ojienda & Associates Limited", Case Analysis (2019). Miscellaneous Application (Chamber Summons Reference) dated 3rd October 2018, arising from Misc. Cause No. 168 of 2017. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.