[2018] KEHC 10217 (KLR)
The court found that the taxing master misdirected herself by failing to provide a clear indication of how the instruction fees of Ksh 900,000 were determined. Although reference was made to the Joreth Limited case, the taxing master did not specify whether the relevant factors were considered, nor did she state the...
Source-derived case information.
- Citation
- [2018] KEHC 10217 (KLR)
- Parties
- Applicant: Rashid Ngaira & Associates Advocates; Respondent: Arid Contractors & General Suppliers Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 399 of 2016
- Procedural Posture
- Miscellaneous Application / Reference Against Taxation Ruling
- Outcome
- Reference allowed in part; taxation of item no. 1 set aside and ordered to be re-taxed by a different taxing master.
- Judges
- MM Kasango
- Legal Topics
- Taxation of Costs, Advocate Client Bill, Instruction Fees, Remuneration Order, Reference Against Taxation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rashid Ngaira & Associates Advocates
Applicant
Arid Contractors & General Suppliers Limited
Respondent
Procedural Posture
Miscellaneous Application / Reference Against Taxation Ruling
Legal Issues
- 1 Whether the taxing master properly exercised discretion in assessing instruction fees under the Advocates (Remuneration) Order.
- 2 Whether the taxing master provided adequate reasons for the amount awarded as instruction fees.
- 3 Whether the absence of supporting documents by the advocate affected the taxation outcome.
Ratio Decidendi
The court found that the taxing master misdirected herself by failing to provide a clear indication of how the instruction fees of Ksh 900,000 were determined. Although reference was made to the Joreth Limited case, the taxing master did not specify whether the relevant factors were considered, nor did she state the amount involved or the interests of the parties. Additionally, the advocate did not provide documentary support for the claimed instruction fees. As a result, the court held that the taxation of item no. 1 (instruction fees) should be set aside and re-taxed by a different taxing master, as the process lacked transparency and justification required by law.
Court Disposition
Reference allowed in part; taxation of item no. 1 set aside and ordered to be re-taxed by a different taxing master.
Orders
- The ruling of the Advocate/Client bill of costs of 24th October 2016 is set aside in respect to item no. 1.
- Item no. 1 of the bill of costs to be re-taxed by a taxing master other than Nancy Makau, Deputy Registrar.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION
MISC. APPL. CAUSE NO. 399 OF 2016
RASHID NGAIRA &
ASSOCIATES ADVOCATES.................................APPLICANT/ADVOCATES
-VERSUS-
ARID CONTRACTORS &
GENERAL SUPPLIERS LIMITED.............................RESPONDENT/CLIENT
RULING
1. There are two applications before me. One is a notice of motion dated 26th January 2017 filed by Rashid Ngaira & Associates Advocate (the advocate) and a chamber summons dated 22nd March 2017 by Arid Contractors & General Suppliers Limited (the client).
2. Although I had made an order that the two applications be heard together, I shall only consider the chamber summons filed by the client in this ruling, for the reasons that will become clear herein below.
BACKGROUND
3. The advocate filed his advocate/client bill of costs on 1st September 2016. It was taxed before the taxing master and a ruling was delivered on 24th October 2016. The client has filed the chamber summons which is a reference against the taxing master’s ruling seeking to set aside that taxation in respect to item no. 1, the instruction fees.
4. The advocate from what I can gather from the affidavits, because there is no document in support, represented the client before the Public Procurement Administrative Review Board. The date of that representation is not shown by the documents before me.
5. The learned taxing master, had this to say in regard to item no. 1 of the bill of costs:
“the applicant (the advocate) has charged a sum of Ksh 900,000 as instruction fees. As per the schedule 11 instruction fees will be ksh 100,000 + % of the additional 16,153,280 = 261,532. 50. However, considering the principles laid down in the case of Joreth Limited vs Kigano & Associates, I find that the sum of Ksh 900,000 will suffice as instruction fees.”
ANALYSIS
6. I have considered the affidavit evidence and the taxing master’s ruling. In regard to the taxation, of the advocate/client bill of costs, and more particularly item no. 1, I confirm that the taxing master taxed the same on the appropriate schedule that is schedule 11 of the Advocates (Remuneration) Order.
7. What however I find was a misdirection on the part of the taxing master was that there is no clear indication of how she arrived at Ksh 900,000. Although the taxing master made reference to the case of Joreth Limited vs Kigano & another [2002] E A 92, she failed to state whether the various factors stated in that case were considered by her. In that case, the court stated that a taxing master should consider, in determining instruction fees, the importance of the matter, general conduct of the case, the nature of the case, time taken for its dispatch and the impact of the case on the parties. The taxing master also failed to state the amount involved and the interest of the parties.
8. In my view, because the advocate did not support, with documents, the claim on instruction fees and because the taxing master did not indicate how, if she was considering the value involved, she arrived at instruction fees of ksh 900,000, I will therefore order that the taxation of item no. 1 be set aside and that that item be re-taxed by another taxing master.
9. In the end, I order that the ruling of the Advocate/Client bill of costs of 24th October 2016 be set aside in regards to item no. 1. I order that item no. 1 be re-taxed by another taxing master other than Nancy Makau, Deputy Registrar.
10. In view of my finding above, and the orders I have made thereof, I direct that the notice of motion dated 26th January 2017, which sought judgment for the taxed amount, be fixed for hearing when item no. 1 of the bill of costs is re-taxed. It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI this 30th day of October, 2018.
MARY KASANGO
JUDGE
Ruling read and delivered in open court in the presence of:
Court Assistant....................Sophie
........................................... for the Applicant
........................................... for the Respondent
MARY KASANGO
JUDGE