Ouma v Warega [1982] KECA 27 (KLR)
The bottom line
#Kenya's Court of Appeal cut a lawyer's taxed bill by Kshs 372 but confirmed that minor paperwork slips and wrong dates don't make a bill of costs invalid.
What this practically means
#Executive summary
#Key legal issues
#Whether failure to file an address for service under rule 78(1) renders the advocate's bill of costs fictitious and unclaimable
No - where the advocate was instructed in the High Court and satisfied the taxing officer that he continued to act and did the work, the bill was not fictitious and the omission was not fatal
The court distinguished Bhatt v Singh, where the advocate only came on record at a late stage to tax costs for work done by others. Here the advocate had been instructed in the High Court and had to have satisfied the taxing officer that he continued to be instructed for the appeal and had done the work specified. The omission to file an address for service under rule 78(1) did not defeat his entitlement to be paid.
Whether the court will interfere with the quantum of a taxed bill
The court has wide power to substitute a reasonable amount, but only when satisfied the bill as taxed was manifestly excessive or inadequate; it will otherwise be slow to interfere
The taxing officer has far greater experience on questions of quantum. The court will intervene only where a question of principle is involved, which was not shown here. Interference was nonetheless justified on discrete items: item 3 was duplicative of item 4 and the taxing officer had overlooked paragraph 13 of the Third Schedule after disallowing more than half the profit costs.
Whether the taxing officer correctly applied paragraph 13 of the Third Schedule
No - having disallowed more than half of the profit costs, he should also have disallowed the costs of drawing, filing and serving the bill and of attending taxation (items 18 to 21, totalling Kshs 122)
The taxing officer overlooked paragraph 13 of the Third Schedule to the Rules. Since more than half of the profit costs had been disallowed, the consequence under that paragraph was that the ancillary costs of the bill itself and attendance at taxation also fell away. Those items totalled Kshs 122 and were struck off.
Legal principles established
#- A bill of costs is not fictitious merely because the advocate failed to file an address for service, where he was instructed in the High Court and continued to act
- Wrong dates in a bill of costs are not fatal because preparation work is done over a period and the dates are approximations
- The court may substitute a reasonable amount only where the bill as taxed is manifestly excessive or inadequate, and is slow to interfere with quantum absent a question of principle
- Where more than half of the profit costs are disallowed, paragraph 13 of the Third Schedule requires the costs of drawing, filing and serving the bill and of attending taxation also to be disallowed
Court orders
#- 1.Item 3 of the bill (Perusing record of appeal) disallowed and the Kshs 250 allowed thereunder struck off
- 2.Items 18, 19, 20 and 21 of the bill, totalling Kshs 122, disallowed under paragraph 13 of the Third Schedule
- 3.Bill as taxed reduced by Kshs 372, from Kshs 5,026 to Kshs 4,634
- 4.Allocatur of Kshs 50 added, making Kshs 4,684 in all
- 5.No order for costs on the reference
- Jurisdiction invoked
- Rule 109 of the Court of Appeal Rules (reference from a taxing officer's decision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ouma v Warega [1982] KECA 27 (KLR)", Case Analysis (1982). Civil Appeal No 52 of 1980. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1982/27/eng@1982-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.