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Mwangi Keng’ara & Company Advocates v Mungai (Miscellaneous Application E317 of 2021) [2022] KEHC 14419 (KLR) (Commercial and Tax) (13 October 2022) (Ruling)
Neutral citation:
[2022] KEHC 14419 (KLR)
Republic of Kenya
Miscellaneous Application E317 of 2021
WA Okwany, J
October 13, 2022
Between
Mwangi Keng’ara & Company Advocates
Advocate
and
Zipporah Mungai
Client
Ruling
1.This ruling is in respect to two applications; the client’s reference dated 10th November 2021 and the Advocates application dated 17th November 2021. I will consider with the reference first since its outcome with have a bearing on the Advocate’s application.
Application dated 17th November 2021.
2.The client filed the reference dated 17th November 2021 seeking the following orders:-1.The Ruling and Taxation of the Taxing Master delivered on 26th October 2021 be 
set aside.2.The Bill of Costs dated 29th April 2021 be struck out.3.In the alternative that this Honourable Court be pleased to remit the Bill of Costs dated 29th April 2021 for fresh taxation, with directions on the conduct of the 
taxation.4.The costs of this Application be provided for.
set aside.2.The Bill of Costs dated 29th April 2021 be struck out.3.In the alternative that this Honourable Court be pleased to remit the Bill of Costs dated 29th April 2021 for fresh taxation, with directions on the conduct of the taxation.4.The costs of this Application be provided for.
3.The application is brought under Rule 11 of the Advocates Remuneration Order (ARO).
4.The application is supported by the affidavit sworn by the client Ms Zipporah Mungai and is based on the following grounds:-I.The Applicant objects to the assessment of items 1, 14, 15, 16, 17, 18, 19, 20 and 31 
of the Bill of Costs dated 29th April 2021.
The Taxing Officer fell into an error of principle by failing to appreciate that an 
incompetent pleading filed before a Court that lacked jurisdiction could not be the basis of a lawful claim for fees under the Advocates Remuneration Order.II.The Taxing Officer fell into an error of principle by holding that he had no 
jurisdiction to ascertain the lawfulness, competence and validity of the Bill of Costs before him when the same was admittedly founded on an incompetent pleading 
filed in a Court that lacked jurisdiction.III.The Taxing Officer fell into an error of principle when he found as a matter of fact that the pecuniary jurisdiction of the Subordinate Court was Kshs. 20,000,000 and still proceeded to consider the Advocates Bill of Costs dated 29th April 2021 filed in respect of services rendered by the Advocates in Nairobi CMCC No. 4671 of 2019 in which the Advocate filed a suit claiming a sum of Kshs. 24,051,320.IV.That the Taxing Officer fell into an error of principle when he unilaterally and without an application to that effect being made revised the value of the subject 
matter from Kshs. 24,051,320 to Kshs. 20,000,000 in order to confer upon himself the requisite jurisdiction to tax the bill.V.Taxing Officer fell into an error of principle when he failed to appreciate that Nairobi CMCC NO. 4671 of 2019 was referred to Arbitration for hearing and determination and an Arbitral award having been made, the Taxing Officer was precluded from having recourse to the pleadings for purposes of ascertainment of the value of the subject matter of the claim.VI.The Taxing Officer fell into error of principle when he failed to appreciate the taxing principle propounded in Nairobi Court of Appeal Civil Appeal Number 328 of 2017, Peter Muthoka —vs- Ochieng Onyango Kibet & Ohaga and elevated the decision of First American Bank of Kenya —vs- Shah & another [20021 IEA to a fetish.VII.The Taxing Officer fell into an error of principle when he failed to appreciate that to allow instruction fees in respect of Nairobi CMCC No. 4671 of 2019 and allow instruction fees in respect of the Arbitral proceedings arising out of the same 
subject matter would amount to duplication of fees in respect of one instruction to the great detriment of the client.VIII.That the Taxing Officer fell into an error of principle when he failed to appreciate that no Statement of Defence was filed in Nairobi CMCC No. 4671 of 2019 and under schedule 7 (l)(a), the instruction fees if any ought to have been reduced to 65%, that is Kshs. 351,000.IX.That the Taxing Officer fell into an error of principle when he found that he had no jurisdiction to deal with the client's Notice of Motion dated 21st May 2021 and instead of referring the same to the High Court, proceeded to dismiss the same.X.The Taxing Officer proceeded on mistaken principles and consequently failed to exercise his discretion judicially as to justify interference by this Honourable Court.
of the Bill of Costs dated 29th April 2021.The Taxing Officer fell into an error of principle by failing to appreciate that an incompetent pleading filed before a Court that lacked jurisdiction could not be the basis of a lawful claim for fees under the Advocates Remuneration Order.II.The Taxing Officer fell into an error of principle by holding that he had no jurisdiction to ascertain the lawfulness, competence and validity of the Bill of Costs before him when the same was admittedly founded on an incompetent pleading filed in a Court that lacked jurisdiction.III.The Taxing Officer fell into an error of principle when he found as a matter of fact that the pecuniary jurisdiction of the Subordinate Court was Kshs. 20,000,000 and still proceeded to consider the Advocates Bill of Costs dated 29th April 2021 filed in respect of services rendered by the Advocates in Nairobi CMCC No. 4671 of 2019 in which the Advocate filed a suit claiming a sum of Kshs. 24,051,320.IV.That the Taxing Officer fell into an error of principle when he unilaterally and without an application to that effect being made revised the value of the subject matter from Kshs. 24,051,320 to Kshs. 20,000,000 in order to confer upon himself the requisite jurisdiction to tax the bill.V.Taxing Officer fell into an error of principle when he failed to appreciate that Nairobi CMCC NO. 4671 of 2019 was referred to Arbitration for hearing and determination and an Arbitral award having been made, the Taxing Officer was precluded from having recourse to the pleadings for purposes of ascertainment of the value of the subject matter of the claim.VI.The Taxing Officer fell into error of principle when he failed to appreciate the taxing principle propounded in Nairobi Court of Appeal Civil Appeal Number 328 of 2017, Peter Muthoka —vs- Ochieng Onyango Kibet & Ohaga and elevated the decision of First American Bank of Kenya —vs- Shah & another [20021 IEA to a fetish.VII.The Taxing Officer fell into an error of principle when he failed to appreciate that to allow instruction fees in respect of Nairobi CMCC No. 4671 of 2019 and allow instruction fees in respect of the Arbitral proceedings arising out of the same subject matter would amount to duplication of fees in respect of one instruction to the great detriment of the client.VIII.That the Taxing Officer fell into an error of principle when he failed to appreciate that no Statement of Defence was filed in Nairobi CMCC No. 4671 of 2019 and under schedule 7 (l)(a), the instruction fees if any ought to have been reduced to 65%, that is Kshs. 351,000.IX.That the Taxing Officer fell into an error of principle when he found that he had no jurisdiction to deal with the client's Notice of Motion dated 21st May 2021 and instead of referring the same to the High Court, proceeded to dismiss the same.X.The Taxing Officer proceeded on mistaken principles and consequently failed to exercise his discretion judicially as to justify interference by this Honourable Court.
5.The respondent opposed the application through the replying affidavit of Mercy Nduta Mwangi who states that she represented the client instructed in MILIMANI CMCC NO 4672 of 2019 wherein her application for summary judgment was dismissed after which she lodged an appeal. She further avers that the subject matter of the appeal was a liquidated sum and that there was therefore no error of principle.
6.The reference was canvassed by way of written submissions.
7.I have considered the reference and the rival arguments made by the parties. The main issue for determination is whether the taxing officer erred in principle when taxing the Bill of Costs.
8.It is trite that the court will only interfere with the decision of the taxing Master where there is an error of principle.
9.In Machira & Co. Advocates vs Magugu [2002] 2 EA Ringera J. (as he then was) held that:-
10.In Joreth Ltd vs Kigano & Associates Civil Appeal No.66 of 1999 [2002] 1 EA 92,[2002] eKLR it was held that unless the taxing officer had misdirected himself on a matter of principle, the judge sitting on a reference against the assessment ought not to interfere with the findings. This exception to the general rule was pronounced by Ringera J (as he then was) in First American Bank of Kenya vs Shah and Others [2002] E.A. 64 at 69, as follows:
11.Similarly, in Kipkorir, Tito & Kiara Advocates vs Deposit Protection Fund Board [2005] eKLR the Court of Appeal held as follows:-
12.The above-cited cases show that the general rule is that the court should not interfere with the findings of the taxing officer unless there is an error in principle.
13.The client contended that the Taxing Master erred in principle in failing to appreciate that the incompetent pleadings filed before a court that lacked jurisdiction could not be a basis for a claim of fees. The client further contended that the Taxing Master made an error in finding that the value of the subject matter was Kshs. 2,470,209
14.In a rejoinder, the advocate stated that the Taxing Master erred in principle as the subject matter of the case was a liquidated sum. It was submitted that the Taxing Master used the Memorandum of Appeal as the basis for determining the value of the subject matter of the suit given that there was no judgment or order produced before her.
15.In assessing the instruction fees the taxing master observed that;
16.With regard to instruction fees the court of appeal in Joreth Ltd vs Kigano & Associates (2002 )1 EA 92 held that:-
17.In the instant case, I note that the advocate filed an appeal pursuant to instructions given to her by the client. I have perused the Memorandum of Appeal and I note that the value of the subject matter could be ascertained. I therefore find that the correct schedule to tax the instruction fees was schedule 6 1 (b) of the advocates remuneration order which provides that:-(b)To sue in any proceedings described in paragraph(a)where a defense or other of liability is filed; or to have an issue determined arising out of inter-pleader or other proceedings before or after suit; or to present or oppose an appeal where the value of the subject matter can be determined from the pleadings, judgment or settlement between the parties and—That value exceeds But does not exceed Kshs. Kshs. Kshs. - 500,000 75,000500,000 750,000 90,000750,000 1,000,000 120,0001,000,000 20,000,000 fees as for Kshs.1,000,000 plus an additional 2%.Over 20,000,000 Fees as for 20,000,000 plus an additional 1.5%.
18.In view of the foregoing, I find that the Taxing Master applied the correct schedule for taxing the instruction fees. The value of the subject matter could be ascertained from the Memorandum of Appeal. The client has not denied that she instructed the advocate to file an appeal and I therefore find that the advocate deserves the legal fees. I do not find any error in principle in ascertaining the instruction fees as the amount is also not too high to amount to unjust enrichment.
19.In the upshot I find that the application dated 10th November 2021 lacks merit and I therefore dismiss it with costs to the respondent.
Application dated 1st November 2021
20.Through the application dated 17th November 2021 the Advocate seeks the following orders for:-1.Entry of judgment against the client/respondent in favor of the applicant for a sum of Kshs. 832,566/= as awarded in the Certificate of Taxation dated 15/11/2021.2.Interest on the taxed costs of Kshs. 832,566 at the rate of 14% per annum with effect from 26/6/2021 until payment in full.3.That the costs of this Application be awarded to the Advocate/ Applicant.
21.The application is supported by the affidavit of the advocate Mercy Nduta Mwangi and is based on the following grounds:-i.That the Applicant's Advocate/Client costs were taxed on 5th/ 11/2021 at a net sum of Kshs.832,566/=.ii.That the Applicant complied with Rule 7 of the Advocates Remuneration (Amendment) Order, when she issued to the Client a notice to levy interest on unpaid Legal fees at the rate of 14% per annum until payment in full.iii.That the Applicant has been denied the use of her lawfully earned fees and it is only fair and just that interest be awarded on the taxed costs at the prescribed rate of 14% per annum until payment in full.iv.That, a demand to pay the taxed costs and interest was issued to the Respondent on 26/10/2021 to no avail.v.That this Honourable Court has the power to enter judgment and award interest as prayed herein.
22.The Client opposed the application on the basis that she had filed a reference to set aside the certificate of taxation.
23.The main issue is whether judgment should be entered against the respondent/client in terms of the Certificate of Taxation.
24.Section 51(2) of the Advocates Act stipulates as follows:-
25.In Lubulellah & Associates Advocates vs N K Brothers Limited [2014] eKLR the court observed that:-
26.This court has already found that there was no error of principle in taxing the bill of costs. I find that the advocate’s application is merited and I therefore allow it as prayed.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 13TH DAY OF OCTOBER 2022.W. A. OKWANYJUDGEIn the presence of: -Ms Mwangi got Advocate.Mr. Masese for Client.Court Assistant- Sylvia
