[2017] KEHC 5439 (KLR)
The court found that the Taxing Officer erred by applying Schedule VIIA, which governs party and party costs, instead of Schedule VIIB, which governs advocate-client costs. The correct approach required the instruction fee to be increased by one half as stipulated under Schedule VIIB. Since the decretal sum was...
Source-derived case information.
- Citation
- [2017] KEHC 5439 (KLR)
- Parties
- Applicant: Makumi, Mwangi, Wang’ondu & Company; Respondent: Invesco Assurance Company Limited
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 191 of 2016
- Procedural Posture
- Miscellaneous Application / Reference From Taxing Officer's Decision Under Rule 11(2) of the Advocates Remuneration Order
- Outcome
- reference allowed; instruction fee varied; costs to applicant
- Judges
- BC Koech
- Legal Topics
- Taxation of Costs, Advocate Client Costs, Instruction Fees, Remuneration Order Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Makumi, Mwangi, Wang’ondu & Company
Applicant
Invesco Assurance Company Limited
Respondent
Procedural Posture
Miscellaneous Application / Reference From Taxing Officer's Decision Under Rule 11(2) of the Advocates Remuneration Order
Legal Issues
- 1 Whether the Taxing Officer erred in applying Schedule VIIA instead of Schedule VIIB of the Advocates Remuneration Order to an advocate-client bill of costs.
- 2 Whether the instruction fees should have been increased by one half as provided for under Schedule VIIB for advocate-client costs.
- 3 Whether the High Court should interfere with the Taxing Officer's decision on the basis of error of principle.
Ratio Decidendi
The court found that the Taxing Officer erred by applying Schedule VIIA, which governs party and party costs, instead of Schedule VIIB, which governs advocate-client costs. The correct approach required the instruction fee to be increased by one half as stipulated under Schedule VIIB. Since the decretal sum was Kshs.100,000, the party and party instruction fee should have been Kshs.25,200, and the advocate-client fee should have been Kshs.37,800. The court determined that this error constituted a misapplication of principle, warranting interference with the Taxing Officer's decision. To avoid further costs and delay, the court reassessed the instruction fee itself and varied the award...
Court Disposition
reference allowed; instruction fee varied; costs to applicant
Orders
- The reference is allowed with costs to the applicant.
- The instruction fee is varied from Kshs.25,200 to Kshs.37,800.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
MISCELLANEOUS CIVIL APPLICATION NO.191 OF 2016
IN THE MATTER OF THE ADVOCATES ACT, CAP 16 LAWS OF KENYA
AND
IN THE MATTER OF TAXATION OF COSTS BETWEEN ADVOCATE & CLIENT
BETWEEN
MAKUMI, MWANGI, WANG’ONDU & COMPANY................................ADVOCATES
VERSUS
INVESCO ASSURANCE COMPANY LIMITED..............................................CLIENT
RULING OF THE COURT
1. This is a reference to the High Court from the decision of the Taxing Officer under the Provisions of Rule 11(2) of the Advocates Remunerations Order. The Applicant had represented the Invesco Assurance Co. limited (Client) in Machakos CMCC. No.507 of 2011 and in which its Advocate – Client bill has since been taxed but which it now seeks for the same to be reviewed, varied or set aside by way of increasing the instruction fees on item No.1 of Advocate – client bill of costs that had been awarded by Hon. L. Kaittany (Deputy Registrar ) on the 31/10/2016.
2. The Applicant’s case is that it is aggrieved by the decisions of the Taxing Officer as regards instruction fees on item No.1 of the Advocate – Client bill of Costs. According to the Applicant the Taxing Officer misdirected herself by misinterpreting the Provisions of Schedule VII of Advocates Remuneration) (Amendments) Order 2009 when she taxed item No.1 as if it was on party and party costs yet this was an Advocate – client Bill of Costs which required that the Instruction fees should be as per Schedule VII B whereby the fee should be increased by one half. The Applicant contends that since the primary suit resulted in a judgment for Shs.100,000/=, then the party and party costs pursuant to Schedule VII A would be Kshs.25,200/= which should then be increased by one half as provided for under Schedule VII B as this is an Advocate – Client Bill of costs which should have resulted in a sum of Kshs. 37,800/= being instruction fees.
3. The Application is opposed. The Client/Respondent’s counsel filed grounds of opposition. It is the Client view that the Taxing Officer complied with the Provisions of the Advocates Remuneration Order and properly applied the principles and exercised her discretion when she taxed the instruction fees for Kshs.25,200/= for which the primary suit resulted in decretal amount of Kshs.100,000/= which does not exceed Kshs.250,000/=. The Client/Respondent therefore sought for the dismissal of the Applicant’s Application.
4. I have considered the Applicant’s reference as well as the Affidavit in support and grounds of opposition thereto. The item in contention is item No.1 on instruction fees. The learned Taxing Officer gave her reasons for the taxation vide her ruling dated 31/10/2016. She clearly stated that the instruction fees was taxed in line with Schedule VII of the Advocates Remuneration Order 2009 and proceeded to indicate that where the subject does not exceed Kshs.250,000/= then the fees should be Kshs.25,200/= since the decretal sum was Kshs.100,000/=. It is indeed trite law that the High court is not entitled to upset a taxation merely because in its opinion, the amount awarded is high or low and it would not interfere with a Taxing Officers decision unless the decision was based on an error of principle, or the fee awarded was manifestly excessive as to justify an inference that it was based on an error of principle (see the case of CONTRUCTION PETROLEUM ENGINEERING [EA] LIMTED = VS= UGANDA SUGAR FACTORY [1970] EA 141.
5. Under the Advocates Remuneration Order 2009, instruction fees as regards party and party costs pursuant to Schedule VIIA where the decretal sum ranges from Kshs.100,000/= - 250,000/= is Kshs.25,200/=. However if it is between Advocate and client costs, then the fee shall have to be increased by 50%. Hence the Applicants Bill of Costs on instruction fee should have been Kshs.25,200/= plus an extra 50% thereof (Kshs. 12,600/=) thus coming to Khss.37,800/=. It is therefore clear that the Taxing Officer had based the taxation on Schedule VIIA instead of Schedule VIIB which deals with Advocate – Client Bill of Costs. Hence I find the Taxing Officer applied a wrong principle and thereby arrived at a lower award of costs as regards instruction fees as between the Applicant and their client.
6. As the only item contested was the instruction fees and the correct assessment noted above, I find it will save judicial time to assess the instruction fees instead of referring the matter to another Taxing Officer (see ROSAFRIC LIMITED =VS= THE CENTRAL BANK – MILIMANI COMMERCIAL COURT No.1389 of 2001 (unreported) so as to avoid a situation where parties are saddled with further costs. I proceed to assess the instruction fees at Kshs.37,800/=.
7. In the result, the reference is allowed with costs to the Applicant and the instruction fee is varied from Kshs.25,200/= to Kshs.37,800/= and hence the Advocate – Clients costs awarded to the Applicant is Kshs. 65,697/= instead of Kshs.53,097/=.
It is so ordered.
Dated, signed and delivered at Machakos this 10thday of MAY 2017.
D. K. KEMEI
JUDGE
In the presence of:
.C/A: Kituva ...........................