[2002] KEHC 245 (KLR)
The application was incompetent because the applicant failed to comply with Rule 11(1) of the Advocates (Remuneration) Order by filing the notice of objection out of time and without seeking an extension. Even if the application were considered on its merits, the taxing officer's decision to award instruction fees...
Source-derived case information.
- Citation
- [2002] KEHC 245 (KLR)
- Parties
- Applicant: Rustam Hira; Respondent: Hassanali Vasanji Manji
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1466 of 1998
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside and Vary Taxation
- Outcome
- application dismissed with costs
- Legal Topics
- Taxation of Costs, Advocate Client Costs, Remuneration of Advocates, Objection Procedure, Instruction Fees, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rustam Hira
Applicant
Hassanali Vasanji Manji
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside and Vary Taxation
Legal Issues
- 1 Whether the application to set aside and vary the taxation was incompetent for failure to comply with Rule 11 of the Advocates (Remuneration) Order.
- 2 Whether the taxing officer erred in assessing the instruction fees based on the value of the subject matter.
Ratio Decidendi
The application was incompetent because the applicant failed to comply with Rule 11(1) of the Advocates (Remuneration) Order by filing the notice of objection out of time and without seeking an extension. Even if the application were considered on its merits, the taxing officer's decision to award instruction fees based on a lower value was justified, as the K.shs. 150 million figure was not agreed upon by the parties or determined by the court, but merely asserted by a self-interested party. The taxing officer did not abuse his discretion, and there was no basis for the court to interfere with the assessment. Accordingly, the application was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application to set aside and vary the taxation is dismissed.
- The applicant shall pay the costs of this application.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
H.C. MISCELLANEOUS CAUSE NO. 1040 OF 1999
AND
IN THE MATTER OF: THE TAXATION OF COSTS
BETWEEN ADVOCATE AND CLIEST
RUSTAM HIRA………………………………APPLICANT/ADVOCATE
AND
HASSANALI VASANJI MANJI……………....RESPONDENT/CLIENT
HIGH COURT CIVIL CASE NO. 1466 OF 1998 (O.S.)
DILSHAD HASSANALI MANJI –VS- HASSANALI VASANJI MANJI
R U L I N G
The Chamber Summons dated 29th September, 2000 is taken out under Sections 44 and 51 of the Advocates Act and Rules 11 (1) (2) and 13(1) of the Advocates (Remuneration) Order. It seeks an order:-
“That the order of Taxation of the Senior Principal Deputy Registrar issued on 26 th January, 2000 be Set aside and varied by increasing the quantum Payable to the Advocate.”
Sections 44 and 51 make general provisions for remuneration of Advocates while Rule 11 sets out the procedure for objections to decisions of taxations and Rule 13 relates to taxations between Advocate and client.
An objection was raised that Rule 11 of the Advocates Remuneration Order was not complied with and I, therefore, have to decide on that matterin limine. Learned Counsel Mr. Chege submitted that this application was filed on 22nd February, 2000 while the Ruling objected to was delivered on 26th January, 2000. That would be a period of 27 days and it would mean that the application is incompetent. In response to that learned counsel for the Applicant Mr. Sheth submitted that there was compliance with Rule 11 by payment of money into Court. It is a submissi0on I do not fathom. Rule 11 (1) states:-
“Should any party object to the decision of the taxing officer, he may within 14 days after the decision give notice in writing to the taxing officer of the items of taxation to whic h he objects.”
The record before me shows, and it is common ground, that the decision of the taxing officer was made on 26th January, 2000 and the certificate of Taxation was issued on 8th February, 2000. The record further shows that the Applicant gave notice of objection under Rule 11(1) on 22nd February, 2000. It is obvious beyond peradventure that the notice was not given in accordance with the Rule nor was any extension sought under Rule 11 (4) to file it out of time. In the event the application filed without compliance with that Rule is incompetent and is struck out. That would be sufficient to dispose of the matter.
I have nevertheless considered the application on merits. The major bone of contention is the taxation made on the item of instruction fees where the Applicant sought a fee of K.shs. 2,270,000/= and the taxing officer awarded K.shs. 360,000/=. It was submitted by Mr. Sheth that the fees ought to be based on the value of the subject matter which the Respondent (wife) in her affidavit assessed at K.shs. 150 million. Under Schedule VI 1(a) the basic fee is provided on that figure and therefore, taxing officer was, wrong in applying other schedules. It was a complex matter involving matrimonial property and the taxing officer even so found. The objection should, therefore, be upheld.
For his part Mr. Chege submitted that the schedule referred to was not applicable because it envisages a matter in which the value of the subject matter can be determined from the pleadings, judgment or settlement between the parties. In this matter the figure of Shs. 150 million was only mentioned by the Respondent’s wife, not even the client who gave instructions to the Advocates/Applicant and it would be unjust to rely on such figure. The figure at any rate is denied by the husband who only mentioned the items of property in dispute. It is for the Court to eventually decide on such value.
I have considered these submissions and perused the Ruling of the taxing master delivered on 26th January, 2000. I find the ruling well reasoned out and support given by the taxing officer for the decision not to rely on the figure of Shs. 150 million as the subject matter of the suit. I agree with Mr. Chege that the figure of Shs. 150 million was only floated by a self-interested party and was not an agreed one on the pleadings or one determined by the Court. The taxing officer did not violate the exercise of his discretion to warrant the interference with his findings and assessment.
I would, therefore, even on merits, dismiss the objections made.
Application dismissed with costs.
DATED at NAIROBIthis 6th day of March, 2002.
P.N. WAKI
JUDGE