[2018] KEHC 9970 (KLR)
The court found that the Taxing Officer erred by applying the lower scale for instruction fees instead of the higher scale, as the matter was defended. The correct instruction fee should have been Ksh.40,000, but due to the settlement at Ksh.160,000 without a full trial, the fee was adjusted to Ksh.30,000 under...
Source-derived case information.
- Citation
- [2018] KEHC 9970 (KLR)
- Parties
- Applicant: Olando Udoto & Okello Advocates; Respondent: Munyoki Kitheka
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 346 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Objection to Taxation of Advocate Client Bill of Costs
- Outcome
- Objection partially sustained; taxed costs increased by Ksh.16,200; each party to bear own costs.
- Judges
- BT Jaden
- Legal Topics
- Taxation of Costs, Advocate Client Costs, Remuneration Order Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Olando Udoto & Okello Advocates
Applicant
Munyoki Kitheka
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Objection to Taxation of Advocate Client Bill of Costs
Legal Issues
- 1 Whether the Taxing Officer erred in applying the lower scale instead of the higher scale for instruction fees.
- 2 Whether the Taxing Officer failed to increase the instruction fee by 50% as required under Schedule 7B(a) of the Advocates Remuneration Order.
- 3 Whether the amounts awarded for court attendances were correct under the applicable schedule.
Ratio Decidendi
The court found that the Taxing Officer erred by applying the lower scale for instruction fees instead of the higher scale, as the matter was defended. The correct instruction fee should have been Ksh.40,000, but due to the settlement at Ksh.160,000 without a full trial, the fee was adjusted to Ksh.30,000 under Schedule 7(1)(b). The Taxing Officer also failed to increase the instruction fee by 50% as required under Schedule 7B(a), resulting in an additional Ksh.15,000. Furthermore, the amounts awarded for court attendances were less than the prescribed Ksh.1,400 per item, leading to an underpayment of Ksh.1,200. The court sustained the objection to the extent of these errors and ordered...
Court Disposition
Objection partially sustained; taxed costs increased by Ksh.16,200; each party to bear own costs.
Orders
- The taxed costs are increased by Ksh.16,200.
- Each party shall bear their own costs of the application.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL MISC APPL. NO. 346 OF 2017
OLANDO UDOTO & OKELLO ADVOCATES................APPLICANT
VERSUS
MUNYOKI KITHEKA.....................................................RESPONDENT
RULING
1. The application dated 12th September, 2018 seeks orders that the decision of the honourable Taxing Officer on the Applicant’s Objection to the taxing of the Advocate-Client Bill of Costs dated the 7th August 2017 be set aside and its objections upheld.
2. The Applicant is dissatisfied with the ruling by the Taxing Master dated 27th July, 2018. It is contended that item 1, 7, 10, 11, 14 & 18 ought to have been taxed at higher amounts as per the Advocates Remuneration Order.
3. The application is opposed. It is stated in the replying affidavit that the case the subject matter of the Advocate/Client Bill the subject of this matter was settled by consent at Ksh.160,000/=. The Respondent is in agreement with the taxation by the Taxing Master.
4. I have considered the application, the response to the same and the submissions made.
5. The objection to the taxation dated 22nd August, 2019 is as follows:
1. Item 1 being instruction fees
The matter was defended and as such the applicable scale is the Higher Scale, thus the fees should be ksh.40,000/=.
2. Item 7, 10, 11, and 14
Schedule 7 (6) of the 2014 Remuneration, any attendance on Magistrate in Court, the stated amount is Ksh.1,400/= and not 1,100/=.
3. Item 18
Schedule 7(B) of the 2014 Remuneration is clear on the issue of Advocate and Client bill of costs.
Schedule 7(B) (a) it will be the fees prescribed in A above increased by 50%.
6. Schedule 7B of the Advocates (Remuneration) (Amendment) Order 2014 as amended by Gazzette Supplement No.65 of 9th April, 2014 is applicable. The fees chargeable should be on the Higher Scale as there was a defence filed. There was settlement of the matter at ksh.160,000/= without going to a full trial. Therefore under Schedule 7(1) (b) the instruction fee chargeable is Ksh.40,000x75%=30,000/=.
7. Although the Taxing Master erred in calculating the figure at the sum of Ksh.30,000/= under the Lower Scale at Ksh.22,500/=, this was enhanced to a figure of Ksh.30,000/= after the Taxing Master took into account the conduct of the suit in that it had been transferred from the Industrial Court to the Chief Magistrate’s Court.
8. The trial magistrate failed to increase the figure by 50% under Schedule 7 B(a) which increases the above figure by an additional sum of Ksh.15,000/=.
9. Item 7, 10, 11 & 14 are court attendances which under schedule 7(6) attracts a fee of Ksh.1,400/= per item. The trial magistrate therefore erred in applying Ksh.1,100/=.This was less by a total of Ksh.1,200/=
10. The objection is therefore sustained to the extent aforestated. This comes to a total increase by Ksh.15,000/= + 1,200/= which is Ksh.16,200/=. The application having been partially successful, each party to bear own costs.
Dated, signed and delivered in Nairobi this 10th day of April, 2018
B. THURANIRA JADEN
JUDGE