[2008] KEHC 478 (KLR)
The court found that the taxing officer committed an error of principle by awarding KShs. 650,000 as instruction fee on the erroneous factual basis that the main suit had been heard and was acrimonious, when in fact it was settled at a preliminary stage. The court held that the minimum instruction fee of KShs....
Source-derived case information.
- Citation
- [2008] KEHC 478 (KLR)
- Parties
- Applicant: Daniel Ogembo Ogola (t/a Ogembo Ogola & Co. Advocates); Respondent: Bashir Muse Mohammed (t/a Jitihadi Shopping Complex)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 569 of 2003
- Procedural Posture
- Miscellaneous Application / Reference Against Taxation of Costs
- Outcome
- Reference allowed in part; taxed sum reduced.
- Legal Topics
- Taxation of Costs, Advocate Remuneration, Instruction Fee, Professional Undertakings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Ogembo Ogola (t/a Ogembo Ogola & Co. Advocates)
Applicant
Bashir Muse Mohammed (t/a Jitihadi Shopping Complex)
Respondent
Procedural Posture
Miscellaneous Application / Reference Against Taxation of Costs
Legal Issues
- 1 Whether the taxing officer erred in principle by awarding an excessive instruction fee based on a misapprehension of fact.
- 2 Whether the sum of KShs. 293,000 paid by the applicant was properly accounted for in the taxation.
- 3 Whether the sums awarded for professional undertakings (items 6A and 73) were excessive.
Ratio Decidendi
The court found that the taxing officer committed an error of principle by awarding KShs. 650,000 as instruction fee on the erroneous factual basis that the main suit had been heard and was acrimonious, when in fact it was settled at a preliminary stage. The court held that the minimum instruction fee of KShs. 387,000 should have been applied. The court also found that the sum of KShs. 293,000 paid by the applicant should have been deducted from the taxed sum. The awards for professional undertakings were upheld as fair, given the risk associated with such undertakings. The reference was allowed only to the extent of reducing the instruction fee and accounting for the payment already...
Court Disposition
Reference allowed in part; taxed sum reduced.
Orders
- Instruction fee reduced from KShs. 650,000 to KShs. 387,000.
- Taxed sum reduced from KShs. 742,755 to KShs. 186,755 after accounting for KShs. 293,000 paid and the reduction in instruction fee.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Misc Appli 569 of 2003
IN THE MATTER OF THE ADVOCATES ACT
AND
IN THE MATTER OF TAXATION OF COSTS
BETWEEN
DANIEL OGEMBO OGOLA (t/a Ogembo Ogola & Co. Advocates)....APPLICANT
AND
BASHIR MUSE MOHAMMED (t/a Jitihadi Shopping Complex)...RESPONDENT
R U L I N G
By his chamber summons dated 27th February, 2004 the Client/Applicant herein has challenged the taxation of the Advocate/Respondent’s bill of costs dated 29th May, 2003. The taxation was on 6th November, 2003. The bill was drawn at KShs. 1,702,365/00. KShs. 742,755/00 was awarded.
From the submissions of the learned counsel for the Applicant, the taxation is challenged upon the following grounds:-
1. That KShs. 293,000/00 that had been paid by the Applicant toward the Respondent’s fees was not taken into account.
2. That the sum of KShs. 10,000/00 awarded for each of items 6A and 73 (which were professional undertakings) were excessive.
3. That the sum of KShs. 650,000/00 awarded for instruction fee was excessive.
In his reply learned counsel for the Respondent conceded that KShs. 293,000/00 paid by the Applicant had not been taken into account by the taxing officer. He made no comment upon the complaint with regard to items 6A and 73. He confined himself to the instruction fee.
I have considered the submissions of the learned counsels. No authorities were cited. I have also read the ruling of the taxing officer. There is no dispute regarding the value of the subject-matter. It was KShs. 22,200,000/00. It is also common ground that under the relevant parts of Schedule VI (as then applicable) of the Advocates (Remuneration) Order, the minimum instruction fee allowable to the Respondent was KShs. 387,000/00.
The Applicant’s complaint is that the taxing officer committed an error of principle in allowing KShs. 650,000/00 upon the basis that the hearing of the suit was very acrimonious whereas there had not been any hearing of the action, the suit having been settled at a preliminary stage.
A taxing officer has the discretion to award an amount greater than the minimum provided for. If the only issue is quantum the court will usually not interfere with the taxing officer’s discretion. But there may be instances where an amount awarded is so excessive as to amount to a wholly erroneous award. Or the amount awarded may have been based upon a misapprehension of a material fact as to amount to an error of principle. In those instances the court may interfere.
In the present case I do not think the amount awarded as instruction fee is so excessive as to amount to a wholly erroneous award. But the taxing officer obviously proceeded upon the misapprehension of fact that the suit had been heard. He said:-
“Going by the acrimony in the taxation of this bill I am of the considered view that the hearing of the main suit must have been worse.”
Well, there was no hearing of the main suit. The suit was settled at a preliminary stage. The taxing officer committed an error of principle by awarding KShs. 650,000/00 as instruction fee upon the erroneous factual basis that there had been a hearing of the main suit and that such hearing was very acrimonious.
The court is therefore entitled to interfere with the award, and I hereby do so by reducing it from KShs. 650,000/00 to the minimum allowed of KShs. 387,000/00.
Although learned counsel for the Respondent did not comment on items 6A and 73 (professional undertaking), I do not agree with the Applicant’s learned counsel that professional undertakings should be treated as mere correspondence. They are not. There is always the risk that the advocate may be called upon to honour the professional undertaking. In the present case the undertakings were for KShs. 20,000/00 each. The taxing officer awarded KShs. 10,000/00 on each of the two items which was half of the sum of the professional undertaking. This was a fair award in the circumstances.
In the result I will allow the reference only as it affects the instruction fee, which is hereby reduced from KShs. 650,000/00 to KShs. 387,000/00, a reduction of KShs. 263,000/00. The taxed sum will also be reduced by the sum of KShs. 293,000/00 paid by the Applicant but not taken into account by the taxing officer.
The taxed sum of KShs. 742,755/00 is therefore reduced to KShs. 186,755/00 as follows:-
Taxed sum....................................... KShs. 742,755. 00
Less........................................... KShs. 293. 000. 00
Less........................................... KShs. 263,000. 00
KShs. 186,755. 00
The reference is allowed only to that extent. In the circumstances of this case, I order that parties do bear their own costs of the application. It is so ordered.
DATED AT NAIROBI THIS 3RD DAY OF DECEMBER, 2008
H. P. G. WAWERU
J U D G E
DELIVERED THIS 5TH DAY OF DECEMBER, 2008