[2004] KEHC 2093 (KLR)
The court held that while the Taxing Officer has discretion to increase or decrease the instruction fee under Schedule 6(1) of the Advocates (Remuneration) Order, this discretion must be exercised judicially. The court found that the reason given for reducing the instruction fee—namely, that the suit was finalized...
Source-derived case information.
- Citation
- [2004] KEHC 2093 (KLR)
- Parties
- Plaintiff: Salt Manufacturers (K) Ltd; Defendant: Pan African Credit & Finance Ltd; Defendant: G.N. Mburu t/a Haki Traders; Defendant: Hamilton, Harrison & Mathews
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 569 of ??
- Procedural Posture
- Civil Case / Ruling on Taxation of Costs
- Outcome
- Application allowed; decision of Taxing Officer set aside.
- Legal Topics
- Taxation of Costs, Instruction Fee, Judicial Discretion, Remuneration Order
- 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
Salt Manufacturers (K) Ltd
Plaintiff
Pan African Credit & Finance Ltd
Defendant
G.N. Mburu t/a Haki Traders
Defendant
Hamilton, Harrison & Mathews
Defendant
Procedural Posture
Civil Case / Ruling on Taxation of Costs
Legal Issues
- 1 Whether the Taxing Officer had discretion to reduce the instruction fee below the scale fee.
- 2 Whether the discretion to reduce the instruction fee was exercised judicially in this case.
Ratio Decidendi
The court held that while the Taxing Officer has discretion to increase or decrease the instruction fee under Schedule 6(1) of the Advocates (Remuneration) Order, this discretion must be exercised judicially. The court found that the reason given for reducing the instruction fee—namely, that the suit was finalized at an early stage and the work involved was minimal—was not a sufficient or proper basis for exercising such discretion. The court emphasized that the details of instruction and value of the subject matter were clearly set out, and the instruction fee was correctly assessed at the scale amount. Therefore, the reduction of the fee by Kshs.500,000 was not justified, and the...
Court Disposition
Application allowed; decision of Taxing Officer set aside.
Orders
- The decision to reduce the scale fee by Kshs.500,000 is set aside.
- The instruction fee shall remain as Kshs.2,000,000.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA CIVIL CASE NO. 569 OF 2000
SALT MANUFACTURERS (K) LTD……………………….PLAINTIFF =V E R S U S= 1. PAN AFRICAN CREDIT & FINANCE LTD………………1ST DEFENDANT 2. G.N. MBURU T.A. HAKI TRADERS……………………..2ND DEFENDANT 3. HAMILTON, HARRISON & MATHEWS…………………3RD DEFENDANT
R U L I N G
By application filed on 20/8/03 the Applicant questions the powers of Taxing Officer by reducing the instruction fee from the scale fee of Kshs.2 Million to Kshs.1. 5 Million.
The Applicant submits that the Trial Magistrate has no discretion to so reduce the minimum fee under the item instructions fee.
In her reasons for reducing the scale fee was on the ground that she exercised her discretion to reduce the fee by Kshs.500,000/- since the suit was terminated in its early stages and the amount of work involved was minimal. She quoted Schedule 6(1).
A perusal of the Schedule referred to shows that Taxing Officer has discretion to increase or decrease (unless otherwise provided). The discretion of the Officer is to be exercised judicially. That the suit was finalized at an early stge is not a reason to invoke discretion. It is shown that the details of instruction and value of subject-matter was clearly set out. The instruction fee was correctly assessed.
Fees for other work done is itemized thereafter separately. By reducing the Bill by Kshs.500,000/- the Officer was in reality not allowing any payments for other work done.
The Remuneration Order is made to ensure that Advocates earn a fair living for the service they give to members of public. It is only fair that unless there is good reason to reduce the scale fee the scale should be adhered to.
In this matter I do not find that the Taxing Officer exercised her discretion judicially.
I therefore set aside the decision to reduce the scale fee by Kshs.500,000/-. The instruction fee shall remain as Kshs.2,000,000/- and the other items shall be reduced by 8,890. 50/-
Orders accordingly.
Dated at Mombasa this 21st day of July, 2004.
JOYCE KHAMINWA
J U D G E