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Judgmentwangari Ndirangu & Co Associates VS Stephen Karanja Chege10 min read

wangari Ndirangu & Co Associates VS Stephen Karanja Chege

High Court at Milimani High Court · · Nyaundi Patricia Mande, SC


1.Before this court is the Chamber Summons dated 14th March 2024 seeking the following orders;

  1. THAT the decision of the Learned Deputy Registrar dated 30th January 2024 with respect to Item 1 on instruction fees on the Applicant/ Advocate Client Bill of Costs dated 22nd June 2023 be set aside and taxed afresh by this Honourable Court.
  2. The Court be pleased to refer the Applicant/ Advocate bill of costs dated 22nd June 2023 for fresh taxation of Item 1 before taxing master and suitable directions.
  3. The costs of this application be provided for.

  1. The Summons is stated to be presented under Order (sic) 11 of the Advocates (Remuneration) Order and is supported by the Affidavit of Wangari Ndirangu sworn on 14th March 2024. The Respondent has sworn an affidavit in opposition dated 16th April 2024 and the Applicant has sworn a further affidavit in response thereto dated 9th May 2024.

SUMMARY

  1. From what I can glean in the pleadings filed, the Applicant was instructed by the Respondent in Succession Cause No. 3268 of 2013. The Applicant subsequently filed an Advocate client bill of costs seeking an instruction fee of Kshs 4,918,195.06 which was premised on an approximate value of the estate of Kshs 323,879,670.88. It is the contention of the Advocate that the instruction fee ought to be pegged on the value of the estate and not the distribution to the individual beneficiary.
  2.   The Advocate is aggrieved that the taxing master taxed the instruction fee at Kshs 802325.71 an amount so manifestly low as to constitute an error on principle and that therefore this court should interfere with the decision of the taxing master.
  3. In response to the Application the Respondent avers that the taxing master did not err and that he had infact over paid the advocate and would like a refund of the excess payment. It is contended that the reference does not disclose the error of principle. It is contended that the Taxing master was generous as the value of the estate was quoted as Kshs 40 million in the Petition. It is further averred that the Taxing Master was right in pegging the fees on the entitlement of the respondent and not the value of the estate.
  4. In response the Advocate contends that her instructions were regard to the Administration of the whole estate and reiterates that the Taxing Master erred in his assessment of the value of the estate.
  5. The Application was canvassed via written submissions. The Submissions of the Applicant are dated 15th July 2024, those of the Respondent are dated 30th July 2024.

SUMMARY OF SUBMISSIONS

  1. The Applicant identifies the following as the issues for determination
    1. What are the principles on determining how instruction fees are tabulated in Succession matters
    2. Did the Respondent/ Client issue instructions on the Administration of the Estate
    3. On what grounds does the Court reverse a taxing Masters decision
    4. Were there facts the trail Court took judicial notice and the taxation master was obligated or empowered to do so
    5. Is the value of the Subject matter ascertainable from facts not needed to be specifically pleaded?
    6. What principles of taxation did the taxing master err on
  2. On the 1st issue it is submitted that instruction fees should be pegged on the value of the estate and reference made to the decision on Kipkorir, Titoo & Kiara Advocates v June Nduta Kinyua & Another [ 2012] eKLR for the argument that the fees is determined by the instructions given.
  3. On the 2nd issue, it is submitted that the instruction was to get orders for the respondent to administer the estate. This is evidence by the fact that the Advocate filed a cross petition on his behalf.
  4. On the 3rd issue, it is urged that the Court has discretion to reverse the decision of the taxing master after it is demonstrated that he erred in principle. Reference is made to the decision in Otieno, Ragot & Company Advocated v Kenya Airports Authority [2021] eKLR and Joreth Limited vs Kigano & Associates [2002] 1 EA 92.
  5. It is submitted that the discretion of the taxing master is guided by well-established principles as elucidated in the case of Vipul Premchand Haria vs Kilonzo & Co. Advocates [2020] eKLR, it is submitted that the value of Kshs 250000 is arbitrary and no basis laid for it.
  6. On the 4th issue, It is submitted that the taxing master erred in principle in by failing to provide grounds upon which he interfered with the assessment by the Applicant and reference made to the decision in Mereka & Co. Advocates v Thomas Ngugi Mbugua & 3 Others [2019] eKLR and this included taking into account irrelevant factors and failing to take into account relevant factors. It is submitted that the Court should set out the basic fee as the outset before proceeding to increase or decrease it. It is submitted in assessing the value of the estate the taxing master exercised his discretion improperly.
  7. On the 5th issue that the Taxing master ought to have taken judicial notice of some of the assets including the shares and rates and rents that are based on market value of the property
  8. On the 6th issue, it is submitted that it was possible to ascertain the value of the parcels of land and that the value as quoted by the applicant was not exaggerated but was based on evidence, documents availed and therefore based on fact.
  9. On the final issue it is submitted that the taxing master erred in finding that instruction fees are pegged on the legal interest in the estate and employing discretion when the value of the assets could be ascertained from the pleadings.
  10. The Respondent frames a sole issue for determination; the issue being: whether the Taxing Master has applied the correct principles in determining the value of the subject matter. The respondent faults the assessment of the value of the estate at Kshs 323, 879, 670.88 and also faults the assessment by the taxing master at Kshs 250,000,000. Reference is made to the decision in Joreth Limited v Kigano Associates [2002] eKLR and S. G. Mbaabu & Co. Advocates v Joseph Muoki Kakenyi & 2 Others [2019] eKLR and states that on the basis of those authorities the correct value for purposes of assessing the instruction fees was Kshs 40,000,000.
  11. It is submitted that the decisions in Kyalo Mbobu T/A Kyalo & Associates Advocates v Jacob Juma [2015] eKLR and Trade Bank Limited (in Liquidation) vs LZ Engineering Construction Ltd and Anor Application Number Nai 117 of 2007 further reiterate this point.
  12. Whilst acknowledging that the taxing master has discretion it is submitted that that the discretion should be exercised within reason, fairly and judiciously as held in Green Hills Investments Ltd vs China National Complete Plant Export Corporation (Complaint) T/A Covec (2004) 1KLR 74 on how the Court assesses fees.
  13. The Respondent therefore prays that the reference be dismissed or be reassessed using the correct principles of taxation.

ANALYSIS AND DETERMINATION

  1. I have considered the ruling on the bill of costs delivered on 30th January 2024, the reference filed herein along with the applicant’s supporting and further affidavit and the respondents replying affidavit along with the rival submissions.
  2. The principles to guide a Court in considering an application to set aside the decision of Taxing Master were well established in the cases of Premchand Raichand Limited & Another v Quarry Services of East Africa Limited and Another [1972] E.A 162, First American Bank of Kenya vs Shah and Others (2002) EA 64 and Joreth Ltd v Kigano and Associates (2002) 1 EA 92. These include;

a. That there was an error of principle.

b. The fee awarded was manifestly excessive or is so high as to confine access to the court to the wealthy.

c. That the successful litigant ought to be fairly reimbursed for the costs he has incurred.

d. That so far as practicable there should be consistency in the award.

  1. The court will not normally interfere with the taxing master’s ruling simply because it thinks it would have awarded a different figure had it been the one taking the bill. The court can interfere if it is proved that the amount taxed was manifestly excessive or low; and The court can interfere if there is proof that the taxing officer followed a wrong principle in reaching his decision.
  2. There is a general caveat on judicial review of quantum of taxation unless there is a clear error of principle or the sums awarded are either manifestly high or low as to lead to an injustice. In James v Nyeri Electricity [1961] 492, it was stated at pages 492 – 293 as follows: -

Where there has been an error in principle the court will interfere but questions solely of quantum are regarded as matters with which the Taxing Officers are particularly fitted to deal and the court will intervene only in exceptional cases. An example of such an exceptional case is that of Haiders Bin Mohamed Elmandry and Others v Khadija Binti Ali Bin Salim (4) 1956, 23 EA.C.A.313, in which an instructions fees of the 9,000/= was considered so excessive as to indicate that it must have been arrived at unjudicially or on erroneous principles.” [own emphasis]

  1. In the case of Nyangito & Co. Advocates v Doinyo Lessos Creameries Ltd [2014] eKLR, Odunga J ( as he then was) emphasized that the circumstances under which a Judge of the High Court interferes with the taxing officer’s exercise discretion are now well known.  These principles are: -

1) That the court cannot interfere with the taxing officer’s decision on taxation unless it is shown that either the decision was based on an error of principle or the fee awarded was manifested excessive as to justify an inference that it was based on an error of principle;

2) It would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors and, according to the Remuneration Order itself.  Some of the relevant factors to be taken into account include the nature and importance of the cause or matter, the amount or value of the subject matter involved; the interests of the parties, the general conduct of the proceedings and any direction by the trial Judge;

3) If the court considers that the decision of the taxing officer    discloses errors of principle, the normal practice is to remit it back to the taxing officer for reassessment unless the Judge is satisfied that the error cannot materially have affected the assessment and the court is not entitled to upset a taxation because in its opinion.

  1.  The Applicant takes issue with the instruction fees awarded by the Taxing Master. He states that the Taxing Officer did not apply his discretion judiciously. In Joreth Limited – vs- Kigano & Associates [2002] E.A, the court stated as follows: -

We would at this stage point out that the value of the subject matter of a suit for the purposes of taxation of a bill of costs ought to be determined from the pleadings, judgement or settlement (if such be the case) but if the same is not so ascertainable the taxing officer is entitled to use his discretion to assets such instruction fee as he considers just, taking in to account, amongst other matters, the nature and importance of the cause or matter, the interest of the parties, the general conduct of the proceedings, any direction by the trial Judge and all other relevant circumstances. That is what CK Njai Esq did when he said:

As we do not know the capital value of the property in dispute; one I believe is left to determine the matter on the general discretion donated to the Taxing Officer to tax a bill, based on the importance of the matter to the parties, complexity and the responsibility placed on shoulders of Counsel. [own emphasis]

  1. In the Ruling dated 30th January 2024, the Hon. Taxing Master stated the applicable schedule of the Advocate’s Remuneration Order is Schedule 10 A (1)(a) and f and Part B of the Remuneration Order. On instruction fees, he correctly directed himself that the value of the subject matter in a suit is determined from pleadings, judgment or settlement and if not available the taxing master to use some discretion to assess such instruction fee as he/ she considers fit, considering the nature and importance of the matter, the interest of parties, general conduct of proceedings or any other relevant factors.
  2. Having so guided himself, the Court proceeded to assess the value of the estate at Kshs 250,000,000. I find that the taxing master correctly guided himself on the principles that should guide him in ascertaining the instruction fee.
  3. It is contended that the learned judge misapprehended the instructions that were given to the Applicants by failing to find that the instructions encompassed the entire estate. I have looked at the Bill of Costs alongside Item 1 in the column for services rendered it is described as follows, ‘Given instructions to represent Stephen Karanja Chege in Succession Cause No. 3268 of 2013 which the total estimate value of the estate is over Kshs 323, 879,670.88’.
  4. It is evident from that description that the Advocate was acting for the Respondent as a beneficiary of the estate and not as administrator of the estate.
  5. The Court of Appeal in Ratemo Oira & Co. Advocates v Magereza Sacco Society Ltd [2019] eKLR stated-

The business of taxation of costs must ensure a delicate balance between the guiding principles aptly pronounced by the Premchand case which include: the “Court owes a duty to the general public to see that costs are not allowed to rise to such a level as to deprive of access to Courts but the worthy” and “the general level of the remuneration must be such as to attract worthy recruits to the profession.

  1. In conclusion, in light of the foregoing I will dismiss the application and uphold the ruling of the taxing master dated 30th January 2024. Each party shall be their own costs


SIGNED, DATED and DELIVERED VIRTUALLY at NAIROBI this…7th day of March 2025


    wangari Ndirangu & Co Associates VS Stephen Karanja Chege wangari Ndirangu & Co Associates VS Stephen Karanja Chege