Ratemo Oira & Co Advocates v Magereza Sacco Society Ltd
The bottom line
#Kenya's Court of Appeal confirmed lawyers only earn full instruction fees when a property deal actually completes, not just when hired.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to full instruction fees on receipt of instructions in an uncompleted non-contentious conveyancing transaction
Full instruction fees pegged to the value of the subject matter are not payable where the conveyance is not completed; only Schedule V remuneration under Rule 18(f) applies
Rule 18(a) remuneration for a sale or purchase of immovable property arises only once property passes upon execution of a valid contract and completion of conveyancing formalities vesting legal title. Since the sale agreement and transfer were never executed and the deposit was never paid, the transaction was uncompleted and Rule 18(f)/Schedule V governs. The instruction fee of Kshs.100,000/= was fair remuneration for the minimal, early-stage work actually done.
Whether the High Court erred in principle in upholding the Taxing Officer's discretion
No error of principle was shown; the Judge correctly identified the grounds for interfering with a taxing officer's discretion and found no justification for interference
Interference with discretion is warranted only where the judge acted on wrong principles, the amount is so high or low as to cause injustice, there is a defect in the decision on merits, or the discretion was not exercised judiciously. Here both courts correctly found the transaction incomplete, applied the correct rule and schedule, and the award was not manifestly low given the scope of work done.
Standard of review on an appeal from a judge's reference from a taxing officer
The appeal is akin to a second appeal governed by Section 72(1) of the Civil Procedure Act, allowable only if the decision is contrary to law, fails to determine an issue of law, or there is a substantial procedural error
Following Kipkorir Titoo & Kiara Advocates v Deposit Protection Fund Board, the Court confines itself to questions of law or substantial procedural defects. The appellant identified no such error; both courts below correctly applied the Advocates (Remuneration) Order and exercised discretion properly.
Legal principles established
#- In non-contentious conveyancing, where the transaction is not completed, an advocate's remuneration falls under Rule 18(f) and Schedule V of the Advocates (Remuneration) Order 2009, not Schedule I pegged to the value of the subject matter
- An appeal from a judge on reference from a taxing officer is akin to a second appeal and can only be allowed on the grounds specified in Section 72(1) of the Civil Procedure Act
- A judge will not interfere with a Taxing Officer's decision on taxation unless it is based on an error of principle
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal are awarded to the respondent
- On appeal from
- High Court of Kenya
- Reference under Rule 11(2) of the Advocates (Remuneration) Order 2009, ruling dated 31st May 2017 (K. Bor, J)
- Jurisdiction invoked
- First appeal to the Court of Appeal from a High Court reference under Rule 11(2) of the Advocates (Remuneration) Order 2009
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ratemo Oira & Co Advocates v Magereza Sacco Society Ltd", Case Analysis (2019). Court of Appeal at Nairobi, Civil Appeal (2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/302/eng@2019-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.