[2023] KEHC 19113 (KLR)
The court found that the taxing master erred in awarding an instruction fee below the statutory minimum and failed to include the proper increments and VAT as required by the Advocates Remuneration Order. The court exercised its discretion to extend time for filing the reference, reviewed the instruction fee to the...
Source-derived case information.
- Citation
- [2023] KEHC 19113 (KLR)
- Parties
- Applicant: Muema Kitulu t/a Muema Kitulu & Co Advocates & Co Advocates; Respondent: Gateway Insurance Co Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 228 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Extend Time and Review Taxation Award
- Outcome
- application allowed in part; taxation award reviewed; judgment entered for applicant
- Judges
- AN Ongeri
- Legal Topics
- Taxation of Costs, Advocate Client Bill, Extension of Time, Review of Taxation Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muema Kitulu t/a Muema Kitulu & Co Advocates & Co Advocates
Applicant
Gateway Insurance Co Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Extend Time and Review Taxation Award
Legal Issues
- 1 Whether the court should extend time for filing a reference against the taxation award dated December 14, 2017.
- 2 Whether the taxation award should be reviewed or set aside, specifically regarding the instruction fee.
- 3 Whether the advocate/client bill should be referred to another taxing master for taxation.
Ratio Decidendi
The court found that the taxing master erred in awarding an instruction fee below the statutory minimum and failed to include the proper increments and VAT as required by the Advocates Remuneration Order. The court exercised its discretion to extend time for filing the reference, reviewed the instruction fee to the correct statutory amount, and recalculated the total due, including the ½ advocate/client increment, VAT, and disbursements. Judgment was entered in favour of the advocate for the recalculated sum, with interest from the date of taxation until payment in full.
Court Disposition
application allowed in part; taxation award reviewed; judgment entered for applicant
Orders
- Extension of time to file reference against taxation award granted.
- Instruction fee reviewed and awarded at Kshs 45,000 in accordance with the scale.
Full Case Text
Judgment text and source record
25 paragraphs
Kitulu t/a Muema Kitulu & Co Advocates& Co Advocates v Gateway Insurance Co Ltd (Civil Miscellaneous Application 228 of 2016) [2023] KEHC 19113 (KLR) (Civ) (19 June 2023) (Ruling)
Neutral citation: [2023] KEHC 19113 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Civil
Civil Miscellaneous Application 228 of 2016
AN Ongeri, J
June 19, 2023
Between
Muema Kitulu t/a Muema Kitulu & Co Advocates& Co Advocates
Applicant
and
Gateway Insurance Co Ltd
Respondent
Ruling
1. The application coming for consideration in this ruling is the one dated August 3, 2022 seeking the following orders;i.That this honourable court be pleased to extend time for filing reference herein to the taxation award dated December 21, 2017. ii.That this honourable court be pleased to set aside or review the taxation award made on the December 14, 2017. iii.That in the alternative this honourable court be pleased to directed that advocate/client bill dated May 24, 2016 be referred to another taxing master for taxation.iv.That the costs of this application be in cause.
2. The application is supported by the affidavit of the applicant in which it is stated as follows;a.The advocate/client bill herein sought a sum of kshs 167,168. 32 which included advocates costs, disbursements, travelling costs, court fees 16% statutory VAT, and an increment of ½ the advocates costs in accordance with schedule VII Section B.b.When the award of taxation was made on December 14, 2017 the taxing master granted the advocate/applicant a sum of kshs 49,180. 00. c.Assuming the figure awarded ought to have included 16% VAT, an increment of ½ the advocates costs, the pleaded disbursement as well as court fees paid. It is therefore apparent that the figure granted for advocates costs was grossly below the statutory amount allowed by the Advocates Remuneration Order where final judgment was kshs 401,200/= in the contested suit subject of the advocate/client bill of costs.d.The statutory minimum instruction fee alone ought to have been kshs 45,000/= even before other items were awarded yet the taxing master awarded kshs 49,180/= for the entire bill.e.When the award of taxation was read, the taxing master merely stated the amount awarded without specifying the actual details item by item.f.Although on the December 20, 2017 the advocate/ applicant applied for a copy of a ruling of the taxation master, no copy of the ruling was supplied necessitating protracted correspondence with the Deputy Registrar on the matter and culminating in the Deputy Registrar’s curt letter dated February 4, 2019 directing the advocate/applicant to peruse the ruling in the court file.g.In spite of the foregoing, the advocate/respondent lodged his notice of objection under Rule 11 (1) of the advocates Remuneration Orderon June 20, 2018. h.Attempts to settle this matter out of court as directed by the Late Hon Lady Justice Thuranira Jaden have also proved unsuccessful after the client/respondent rebuffed the advocate/ applicant offer.i.The present application is therefore justified in order to remedy the injustice visited upon the advocate/applicant herein in the ruling of the taxing master aforementioned.
3. The application is not opposed and therefore the Applicant is granted an extension of time to raise an objection to the bill of costs dateDecember 14, 2017.
4. The sole issue for determination in the reference is whether the bill of costs should be reviewed or returned to the taxing officer.
5. I find that the only contested issue is the instruction fee where the taxing officer awarded 27,000 instead of ksh 45,000.
6. I find that it is not in dispute that the value of the subject matter was Kshs, 401,200/=.
7. I accordingly review the instruction fee and I award kshs 45,000 in accordance with the scale.
8. I also award ½ advocates/client increment (ksh. 22,500) making a total of kshs 67,500 plus VAT 16% (7,200) and disbursements of 1,702 the total is 76,404.
9. Judgment be and is hereby entered in favour of the advocate against the client in the sum of kshs 76,404 with interest at 14% from the date of taxation until payment in full.
DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 19TH DAY OF JUNE, 2023. A. N. ONGERIJUDGE