George Miyare t/a Miyare & Company Advocates v Nkonge (Miscellaneous Application E060 of 2020)  KEHC 15864 (KLR) (Family) (25 November 2022) (Judgment)
Neutral citation:  KEHC 15864 (KLR)
Republic of Kenya
Miscellaneous Application E060 of 2020
MA Odero, J
November 25, 2022
IN THE MATTER OF THE ADVOCATES ACT, CHAPTER 16 LAWS OF KENYA IN THE MATTER OF TAXATION OF COSTS BETWEEN ADVOCATE & CLIENT
George Miyare t/a Miyare & Company Advocates
Catherine Gicuku Nkonge
1.Before this court is the chamber summons dated 9th December 2021 by which the Advocate/Applicant GEORGE MIYARE & COMPANY ADVOCATES seeks for the following orders THAT:-
2.The summons which was premised upon Paragraph 11 of the Advocates (Remuneration) Order – 2009 and all enabling provisions of the law was supported by the Affidavit of even date sworn by ESTHER MWIKALI an Advocate of the High Court of Kenya practicing with the Applicants firm of Advocates.
3.The Respondent/Client CATHERINE GICHUKU NKONGE opposed the summons on the following grounds:-1.THAT the Applicants application is totally without merit.2.THAT the applicant has not laid down any plausible grounds to warrant the courts interference with the decision of the Deputy Registrar/Taxing Master.3.THAT the Taxing Master correctly assessed and reduced the instruction fees and other items by taking into consideration all relevant matters in the case in arriving at the decision.4.THAT the Taxing Master did not commit any error in principle in arriving at her decision on the instruction fees and was justified in taxing the bill of costs dated 23rd November 2021.5.THAT the court cannot interfere with the Taxing Officer’s decision on taxation unless it is sown that either the decision was based on error of principle, or the fee awarded was manifestly excessive as to justify an interference that it was based on an error of principle which the applicant has failed prove.”
Analysis and Determination
4.I have considered this summons, the Reply filed thereto as well as the written submissions filed by both parties. This Revision arises from the Ruling delivered by Hon SITATI Deputy Registrar following taxation of the Advocates Bill of Costs dated 17th November 2020. The Hon Taxing Officer taxed the Bill of Costs at Kshs 1,778,336.58. The Applicant challenges the amount taxed under the heading of Instruction Fees which was Kshs 1,275,000.
5.The circumstances under which a court can interfere with the decision of a Taxing Officer were set out in the case of FIRST AMERICAN BANK OF KENYA – VS – SHAH & OTHERS  IEA. 64 where the court held as follows:-
6.Therefore the High Court will only interfere with the decision of the Taxing Officer where there has been an error of principle. Where the dispute relates only to the matter of quantum then the courts are reluctant to interfere as the Taxing Officer is deemed to be best suited to handle matters relating to taxation.
7.As a general rule an Advocate is entitled to receive legal remuneration for services rendered to a client. The amount of remuneration payable to an Advocate will depend on the value of the suit property, the amount of work done by the Advocate and the value of the Subject matter. However, each case must still be decided on its own merit.
8.The above stated principles were also re-affirmed by the Court of Appeal in Joreth Limited v Kigano and Associates  I E.A. 92 where the court stated thus:-
9.In cases where the value of the subject matter is clearly discernible from the pleadings, the taxing master will assess the instruction fees based on the Advocates Remuneration Order. However, where the value of the subject matter is not clearly discernible from the pleadings the taxing master may exercise his discretion in assessing the instruction fees.
10.In PETER MUTHOKA & ANOTHER – VS – OCHIENG & 3 OTHERS  eKLR the Court of Appeal stated as follows:-
11.The question then is whether the value of the subject matter was clearly discernible from the pleadings in this case. Acting upon instructions issued by the client the Advocate filed the Originating Summons in Nairobi Civil Case No. 53 of 2019 seeking the following orders:-a.An order of declaration, declaring the Client/Respondent as sole owner of property L.R. No. 1159/410 and the matrimonial home thereon.b.An order directing the Registrar of Titles to immediately correct the land register relevant to property L.R. No. 1159/410 and register the Client/Respondent as the sole proprietor thereof, in enforcement of prayer (a) above.c.An order of declaration, declaring the Client/Respondent as the sole and beneficial owner of properties:-i.L.R. No. 1150/461;ii.L.R. No. 1159/408 (inadvertently omitted from the prayers, though pleaded as instructed);iii.L.R. No. Dagoretti/Riruta/7009;iv.L.R. No. Dagoretti/Riruta/5853;v.L.R. No. Dagoretti/Riruta/5382;vi.L.R. No. Dagoretti/Riruta/5334vii.L.R. No. Dagoretti/Riruta/5385viii.L.R. No. Dagoretti/Riruta/6631ix.L.R. No. Dagoretti/Riruta/3484/97 (Unit 97 and 29 at Forest view Apartments);x.L.R. No. Dagoretti/Riruta/3484/98 (Unit No. 98 and 42 at Forest View Apartments);xi.Any/all developments on the above properties (including 234 apartment units, 18 office units and 7 commercial shop units at CASTAN APARTMENTS).d.An order directing the Registrar of Titles to immediately correct the land Registers relevant to the following properties and register the Client/Respondent as the sole proprietor thereof, in enforcement of prayer (c ) above:-i.L.R. No. 1150/461;ii.L.R. No. 1159/408 (inadvertently omitted from the prayers, though pleaded as instructed);iii.L.R. No. Dagoretti/Riruta/7009;iv.L.R. No. Dagoretti/Riruta/5853;v.L.R. No. Dagoretti/Riruta/5382;vi.L.R. No. Dagoretti/Riruta/5334vii.L.R. No. Dagoretti/Riruta/5385viii.L.R. No. Dagoretti/Riruta/6631ix.L.R. No. Dagoretti/Riruta/3484/97 (Unit 97 and 29 at Forest view Apartments);x.L.R. No. Dagoretti/Riruta/3484/98 (Unit No. 98 and 42 at Forest View Apartments);a.An order of declaration, declaring the Client as Owner of the following properties and/or interests thereon:-i.Apartment unit at Riara Apartments on Riara Close, occupied by the Defendant (Stanley M’ngaruthi Nkonge), his mistress and son;ii.Apartment units at Flora Court – Ngong Road, Nairobi (details to be ascertained);iii.5 acres parcel of land at Ok-Keri in Ngong (details to be ascertained);iv.Motor vehicle registration No. KCQ 313U – Toyota Vanguard.
12.The orders sought in the Originating Summons were therefore ‘declaratory orders’. The suit was not for a liquidated sum. Therefore, the Instruction Fees ought to have been taxed in accordance with Schedule VII (1) of the Advocates (Remuneration) Order.
13.In the REPUBLIC – VS – MINISTRY OF AGRICULTURE & 2 OTHERS Exparte MUCHIRI W’NJUGUNA & 6 others, Hon Justice J B Ojwang (as he then was) held as follows:-
14.In Kipkorir, Tito & Kiara Advocates v Deposit Protection Fund Board  eKLR the Court of Appeal held as follows:-
15.Likewise in Arthur v Nyeri Electricity undertaking  E.A. 497 it was held that:-
16.In her Ruling the Hon Taxing Master did take into account the nature and quantity of work carried out by the Advocate contrary to what was submitted by the Applicant. In finding that the value of the Subject matter was not ascertainable the Taxing Master observed as follows:-
17.Given the finding above the learned Taxing Master proceeded to conclude thus:-
18.I find no grounds upon which to fault the findings and/or conclusion of the Taxing Master. I find there was no error of principle. I am therefore not inclined to interfere with the assessment of the Taxing Mater with regard to the Instruction fees.
19.Finally I find no merit in the chamber summons dated 9th December 2021. The same is dismissed in its entirety and costs are awarded to the client/Respondent.
Dated in Nairobi this 25th day of November, 2022.…………………………………**MAUREEN A. ODEROJUDGE