[2009] KEHC 230 (KLR)
The court found that the Taxing Officer did not breach the rules of natural justice, as a ruling was delivered on the issue of retainer and the items in the bill were properly considered. The evidence, including correspondence from the client's agent, established that the advocate was duly appointed to act for the...
Source-derived case information.
- Citation
- [2009] KEHC 230 (KLR)
- Parties
- Plaintiff: Mbugua & Mbugua Advocates; Defendant: Kenindia Assurance Co. Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Case 661 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Taxation of Advocate Client Bill
- Outcome
- application dismissed with costs
- Legal Topics
- Taxation of Costs, Advocate Client Bill, Natural Justice, Retainer Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mbugua & Mbugua Advocates
Plaintiff
Kenindia Assurance Co. Ltd.
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Taxation of Advocate Client Bill
Legal Issues
- 1 Whether the Taxing Officer breached the rules of natural justice in taxing the advocate-client bill.
- 2 Whether the advocate had a valid retainer from the client for the disputed legal services.
- 3 Whether the Taxing Officer applied the correct legal principles in taxing the bill, including VAT and duplication of items.
Ratio Decidendi
The court found that the Taxing Officer did not breach the rules of natural justice, as a ruling was delivered on the issue of retainer and the items in the bill were properly considered. The evidence, including correspondence from the client's agent, established that the advocate was duly appointed to act for the client. The Taxing Officer applied the correct legal principles regarding VAT and duplication of items, and there was no evidence of error in principle or excessive amounts allowed. Therefore, the application to set aside the taxation was without merit and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The reference/application to set aside the Taxing Officer's ruling is dismissed with costs.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
Miscellaneous Case 661 of 2007
MBUGUA & MBUGUA ADVOCATES …..…………………PLAINTIFF
VERSUS
KENINDIA ASSURANCE CO. LTD. …………………… DEFENDANT
R U L I N G
Application dated 10/3/08 filed on 11/3/09 seeking orders to set aside the ruling of Taxing Master taxing client/advocate bill. The application brought under paragraph 11 (2) and 79 of Advocates (Remuneration) (Amendment) Order 1997.
The application is based on two grounds:-
1. That the decision was against rules of natural justice;
2. That the decision was oppressive.
The supporting affidavit of Regina Kitheka described as Legal
Manager, working with Kenindia Assurance Co. Ltd., the respondent. The reasons for taxation are annexed as “RK1” which states:-
“I considered items on the basis that the amount allowed was reasonable. The rest of the items were taxed to scale under Schedule V.”
The client denies instructing advocate to represent Sony Sugar Company Ltd. in CMCC No. 999 of 1998. The statement of defence was drawn, signed and filed by V.R.D. Patel Advocates while the plaint was drawn and filed by Nguku & Co. Advocates. The advocate has therefore to prove his retainer.
On the issue of VAT, it was held in Mereka & Co. vs. National Bank that it was only instructions fees that would be charged VAT. Therefore, only Kshs.18,000/= should be taxed. Item 1 and 2 are duplication. 2 is taken into account under item 1. The issue of retainer or not seriously taken. The letter dated 23/10/2000 addressed to advocate by V.R.D. Patel states:-
“I act for Kenindia Assurance Co. Ltd. (the client herein) and through them for defendant in the above case (PMCC No. 999 of 1998).
Please take over the conduct of the above case…….”
This confirms that an agent of Kenindia did on behalf of Sony Sugar Company appoint the advocate, therefore the issue is dismissed. In fact, the letter of 4/1/2001 does acknowledge:-
“Our advocate M/S Mbugua & Mbugua …. For the purpose of recording statements.”
Perusing the taxation, it does not appear the Taxing Officer breached the rules of natural justice as alleged. The Taxing Officer did deliver a ruling on the issue of retainer. And taxed several items which she thought were not properly drawn. She allowed the bill at Kshs.52,820/50 under Schedule V Part II after taxing 50% client/advocate.
Regarding the matters of taxation of bills of costs the jurisdiction is in the Taxing Officer unless the officer proceeds on wrong principles. The Taxing Officer is the expert in the question of quantum. Thus on the authority of Mereka & Co. Vs. National Bank of Kenya Ltd. – Misc. Application No. 540/2001 Mbaluto, J. said:-
“In any case the law would appear to be against interference in the Taxing Officer’s decision on quantum unless it is shown that the amounts allowed are so excessive as to constitute an error in principle.”
Thomas James Arthur vs. Nyeri Electricity Undertaking [1961] EA 492. There is no evidence that the Taxing Officer acted on wrong principles but as she said, she saw it as reasonable.
I find no merit in this reference and the same is dismissed with costs.
It is so ordered.
DATED, SIGNED and DELIVERED at Nairobi this 5th day of November, 2009.
JOYCE N. KHAMINWA
JUDGE