[2019] KEHC 9728 (KLR)
The court found that the taxing officer erred by increasing the minimum prescribed instruction fee from Kshs 100,000 to Kshs 800,000 without providing any justification or applying relevant factors. Furthermore, the court held that the 50% increase is only applicable when advocate-client costs are determined based...
Source-derived case information.
- Citation
- [2019] KEHC 9728 (KLR)
- Parties
- Applicant: Mumias Sugar Company Limited; Respondent: Professor Tom Ojienda & Associates
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 30 of 2017
- Procedural Posture
- Miscellaneous Application / Reference Against Taxing Officer's Ruling
- Outcome
- reference allowed; taxing officer's ruling set aside; bill of costs to be taxed afresh by a different officer
- Legal Topics
- Taxation of Costs, Advocate Client Bill, Instruction Fee, Remuneration Order
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mumias Sugar Company Limited
Applicant
Professor Tom Ojienda & Associates
Respondent
Procedural Posture
Miscellaneous Application / Reference Against Taxing Officer's Ruling
Legal Issues
- 1 Whether the taxing officer erred in increasing the minimum prescribed instruction fee from Kshs 100,000 to Kshs 800,000 without justification.
- 2 Whether a 50% increase is applicable to an advocate-client bill of costs as opposed to a party & party bill of costs.
- 3 Whether the taxing officer applied relevant factors in determining the instruction fee.
Ratio Decidendi
The court found that the taxing officer erred by increasing the minimum prescribed instruction fee from Kshs 100,000 to Kshs 800,000 without providing any justification or applying relevant factors. Furthermore, the court held that the 50% increase is only applicable when advocate-client costs are determined based on a party & party bill, not when taxing an advocate-client bill directly. The taxing officer's decision to multiply the minimum fee by a factor of eight and then increase it by 50% was unjustified and unsupported by law or the facts of the case. Consequently, the court set aside the taxing officer's findings and directed that the bill of costs be handled afresh by a different...
Court Disposition
reference allowed; taxing officer's ruling set aside; bill of costs to be taxed afresh by a different officer
Orders
- The findings of the learned taxing officer are set aside.
- A taxing officer other than Hon. P.W. Mbulikah will handle the Bill of Costs.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
MISCELLANEOUS APPL. NO. 30 OF 2017
IN THE MATTER OF THE ADVOCATES ACT CAP 16 AND
THE ADVOCATES (REMUNERATION) ORDER, 2009
AND
IN THE MATTER OF THE ADVOCATES (REMUNERATION) (AMENDMENT) ORDER, 2014
AND
IN THE MATTER OF THE ADVOCATE-CLIENT BILL OF COSTS
BETWEEN
MUMIAS SUGAR COMPANY LIMITED......................................................APPLICANT
AND
PROFESSOR TOM OJIENDA & ASSOCIATES .......................................RESPONDENT
[Being a Reference filed pursuant to the leave of court granted on 20th March, 2018 against Hon. P.W. Mbulikah’s (the taxing officer’s) Ruling in Misc Application No. 30 of 2017]
RULING
In a Ruling delivered on 11th October 2017 the taxing officer awarded to the advocate costs in the sum of Kshs 1,603,555/=.
1. In arriving at that sum the learned taxing officer noted that pursuant to the Advocates Remuneration Order, the minimum prescribed Instruction Fee applicable to the case was Kshs.100,000/=.
2. She then proceeded to award an Instruction Fee in the sum of
Kshs 800,000/=.
3. Having determined the Instruction Fee, the taxing officer ruled that the same ought to be increased by 50%.
4. The Bill of Costs which was being taxed is an Advocate/Client Bill. It was not a Party & Party Bill.
5. When a Party & Party Bill of Costs has been taxed, it is in order for the taxing officer to determine the Advocate/Client costs in that case, by simply increasing the Party costs by 50%.
6. However, when an Advocate/Client Bill of Costs has been taxed, there is no legal basis for increasing it by 50%.
7. In this case I find that the learned taxing officer did not provide any justification to warrant an increase of the minimum prescribed Instruction Fee from Kshs 100,000/= to Kshs 800,000/=.
8. I find that the decision to multiply the minimum prescribed fee by a factor of 8 was unjustified. It resulted in a very high un-explained amount, which I can only attribute to either the application of irrelevant factors or the failure to give consideration to the relevant factors.
9. In the event, I do set aside the findings of the learned taxing officer, and direct that a taxing officer other than Hon. P.W. Mbulikah will handle the Bill of Costs.
10. The costs of the reference are awarded to the client.
DATED, SIGNED and DELIVERED at KISUMU
This6thday of February2019
FRED A. OCHIENG
JUDGE