Automated Summary
Key Facts
The case involves a dispute over the taxation of legal costs for a suit dismissed for want of prosecution. The applicant challenged the taxed instruction fees of Ksh. 416,634.90, arguing the value of the subject matter should be based on the plaint's Ksh. 8,055,322 rather than the respondent's counterclaim of Ksh. 9,831,745. The court found the taxing master erred in principle by using the counterclaim amount and re-taxed the instruction fees to Ksh. 100,000 (including a discretionary increase of Ksh. 25,000). Getting up fees of Ksh. 138,878.30 were struck off entirely, and items 3-99 remained taxed at Ksh. 211,750, resulting in a total re-taxation of Ksh. 311,750.
Tax Type
Taxation of legal costs (instruction and getting up fees) under Advocates Remuneration Order 2014
Issues
- The court assessed the validity of taxing getting up fees (Ksh 138,878.30) under Schedule 6A paragraph 2, which requires the matter to be confirmed for hearing. Since the main suit was dismissed without confirmation for hearing, the court struck the getting up fee entirely.
- The court evaluated if the taxing master applied Schedule 6A correctly, particularly paragraph 1(b), which mandates 75% of standard fees for suits dismissed without full trial. The applicant claimed the taxed amount (Ksh 416,634.90) exceeded the permissible 75% (Ksh 75,000) based on the plaint's value.
- The court determined whether the taxing master erred in principle by using the counterclaim's value (Ksh 9,831,745) instead of the plaint's stated amount (Ksh 8,055,322) to calculate instruction fees under Schedule 6A of the Advocates Remuneration Order 2014. The applicant argued the higher figure was unjustified as the suit never proceeded to trial and was dismissed for want of prosecution.
Holdings
- The court upheld the taxing master's decisions for items 3-99, finding the applicant failed to substantiate claims of excessive taxation. The applicant's arguments about the quantum of fees for these items were deemed unsubstantiated.
- The court found that the taxing master erred in principle by relying on the counterclaim's amount (Ksh 9,831,745) instead of the plaint's stated value (Ksh 8,055,322) to calculate instruction fees. It re-taxed item 1 from Ksh 416,634.90 to Ksh 100,000 (Ksh 75,000 base + Ksh 25,000 discretion) under Schedule 6 1(b) of the Advocates Remuneration Order 2014, considering the suit was dismissed for want of prosecution and no trial occurred.
- The court determined that the taxing master erred in awarding getting up fees (item 2) at Ksh 138,878.30. Since the main suit was never set down for hearing, the getting up fee was struck off entirely under Schedule 6A paragraph 2 of the Advocates Remuneration Order 2014.
Remedies
- The court determined that the taxing master erred in principle by using the respondent's counterclaim value (Ksh 9,831,745) instead of the plaint's stated amount (Ksh 8,055,322) for instruction fee calculations. After applying Schedule 6 1(b) of the Advocates Remuneration Order 2014, the court re-taxed item 1 to Ksh 75,000 and added a discretionary Ksh 25,000 for the respondent's efforts, resulting in a total of Ksh 100,000 for instruction fees.
- The court ruled that the taxing master erred in awarding getting up fees since the main suit was never set down for hearing, making the provision under Schedule 6A inapplicable. Consequently, the getting up fee of Ksh 138,878.30 was entirely struck off.
Tax Issue Category
Other
Legal Principles
The court applied Schedule 6A of the Advocates (Remuneration) Order, 2014, emphasizing that instruction fees should be calculated based on the actual value of the subject matter as stated in the plaint rather than the counterclaim. It also referenced precedents (Joreth Ltd v Kigano & Associates, First American Bank of Kenya vs Shah) to affirm that courts must only interfere with taxing officers' decisions if there is an error of principle or manifest excessiveness in the assessed costs.
Disputed Tax Amount
684478.20
Precedent Name
- Nyangito & Co Advocates Vs Donyo Lessos Creameries Ltd
- KANU National Elections Board & 2 others vs Salah Yakub Farah
- First American Bank of Kenya vs Shah and Others
- Republic Vs Ministry of Agriculture & 20 Others Ex Parte Muchiri W'Njuguna
- Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board
- Joreth Ltd Vs Kigano & Associates
- Premchand Raichand Ltd Vs Quarry Services of East Africa Ltd (No 3)
Cited Statute
Advocates Remuneration Order 2014
Judge Name
Mwangi Njoroge
Passage Text
- 27. The total taxed amount shall therefore be Ksh 311,750 comprised as follows: Item 1 - Ksh. 100,000/=; Item 2 - Ksh. Nil/=: Item 3-99 - Ksh. 211,750/= (as taxed by the taxing master.) Total - Ksh 311,750/=
- 1. Instruction fees Subject as hereinafter provided, the fees for instructions shall be as follows— (a) To sue in an ordinary suit in which no appearances is entered under Order IX A of the Civil Procedure Rules where no application for leave to appear and defend is made, the fee shall be 65% of the fees chargeable under item 1(a). (b) To sue or defend in a suit in which the suit is determined in a summary manner in any manner whatsoever without going to full trial the fee shall be 75% of the fees chargeable under item 1(b).
- 19. The suit not having been set down for hearing, it is this court's opinion that item 1 ought to have been taxed in line with the provisions in Schedule 6 1(b) of the Advocates Remuneration Order (2014) which provide as follows: 1. Instruction fees... (b) To sue or defend in a suit in which the suit is determined in a summary manner... the fee shall be 75% of the fees chargeable under item 1(b).