Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
High CourtPartially AllowedMisc Application No 497 of 2017· [2020] KEHC 9338 (KLR)

Alfred Ochieng Opiyo t/a Ochieng Opiyo & Co Advocates v Hydro Pump and Services (Africa) Limited (Note: parties as styled in judgment - Applicant is the advocate, Respondent is the Client)

High Court of Kenya
12 February 2020
1,944 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

When challenging a lawyer's fee assessment, your 14-day deadline starts only after you receive the full written reasons for the decision.

What this practically means

#

Executive summary

#
The Client, Hydro Pump and Services (Africa) Limited, filed a Chamber Summons under Rule 11(2) of the Advocates (Remuneration) Order, 2009 seeking to set aside the Taxing Officer's decision of 15th November 2018 taxing the advocate's Advocate-Client Bill of Costs (from Kshs 95,943/= to Kshs 89,604/=) and to have the Bill placed before a different Taxing Master. The advocate opposed, arguing the reference was filed out of time and that the taxing master applied proper principles. The court held that under Paragraph 11 of the Order an objector need not file a reference within fourteen days of the decision; the reference must be filed within fourteen days of receipt of the reasons, and there is no time limit within which the taxing master must furnish reasons. As the reasons were only availed on 30th January 2019 and the advocate filed no affidavit evidence, the application was held to be within time. On the merits, the court found the taxing master had awarded instruction fees of Kshs 25,200/= on the basis that the underlying suit was defended, yet the defendants in CMCC No 8232 of 2013 never entered appearance. Rather than re-tax, the court remitted the Bill for fresh taxation before a different taxing master in the High Court Milimani Law Courts Civil Division, with costs of the application in the cause.

Key legal issues

#
01

Timeliness of the reference under Paragraph 11 of the Advocates (Remuneration) Order

Holding

The reference was filed within fourteen days of receipt of the typed Ruling and was therefore competent

Reasoning

The Respondent filed a Notice of objection on 29th November 2018 within fourteen days of the decision, then requested reasons which were only availed on 30th January 2019. Since Paragraph 11(2) allows fourteen days from receipt of reasons, and the court could not discern what happened at delivery because the Applicant filed no affidavit evidence, the application was held to be within time.

p. 3
02

Whether the Taxing Master proceeded on correct principles in assessing instruction fees

Holding

The court found the Taxing Master erred in awarding Kshs 25,200/= on the basis that the suit was defended when the defendants never entered appearance

Reasoning

The court perused the documents and found that in CMCC No 8232 of 2013 the defendants did not enter appearance and judgment was requested on default. The instruction fee had been assessed on a defended-suit basis, which was a wrong principle. Rather than re-tax itself, the court remitted the Bill for fresh taxation before a different taxing master.

p. 3

Legal principles established

#
  • An objector to a taxing officer's decision need not file a reference within fourteen days of the decision; the reference must be filed within fourteen days of receipt of the reasons for the decision
  • There is no time limit within which the taxing master must forward the reasons for his taxation

Court orders

#
  1. 1.The Client's Chamber Summons application dated 7th February 2019 and filed on 13th February 2019 is allowed in terms of Prayer No (1) therein
  2. 2.The Taxing Master's decision delivered on 15th November 2018 is set aside and/or vacated
  3. 3.The Advocate-Client Bill of Costs dated 2nd October 2017 and filed on 4th October 2017 is remitted for taxation before any Taxing Master in the High Court Milimani Law Courts Civil Division other than the Taxing Master who taxed the said Bill of Costs
  4. 4.The costs of the application will be in the cause

Authorities

#

Legislation

  • Advocates (Remuneration) OrderParagraph 11(1)
  • Advocates (Remuneration) OrderParagraph 11(2)
  • Advocates (Remuneration) OrderSchedule 6
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (3)

  • Lawrence Mwangi & Co Advocates vs John Mathiaka Kimundu
    [2019] eKLR

    That the procedure of challenging the decision of the taxing master is well set out in the Advocates (Remuneration) Order

  • S.M. Kibira t/a Muteithia Kibira Advocates v Prodigy Properties Limited
    [2017] eKLR

    That taxation of costs is not a mathematical exercise but an opinion-based exercise

  • Alfred Ochieng Opiyo t/a Ochieng Opiyo & Co Advocates vs Hydro Pump and Services (Africa) Limited
    [2019] eKLR

    Cited to buttress the Applicant's arguments on taxation

Jurisdiction invoked
Rule 11(2) of the Advocates (Remuneration) Order, 2009 and Article 159(2)(d) of the Constitution of Kenya

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Alfred Ochieng Opiyo t/a Ochieng Opiyo & Co Advocates v Hydro Pump and Services (Africa) Limited (Note: parties as styled in judgment - Applicant is the advocate, Respondent is the Client)", Case Analysis (2020). Misc Application No 497 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/9338/eng@2020-02-12

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