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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No 78 of 2018· [2019] KECA 672 (KLR)

Muriu Mungai & Company Advocates v China Civil Engineering Construction Corporation (k) Ltd

Court of Appeal
28 May 2019
3,694 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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The Court of Appeal confirmed that instruction fees are based only on what was actually in dispute, not a client's whole investment, and a general objection notice is valid.

What this practically means

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Executive summary

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The appellant law firm filed a bill of costs for legal services rendered to the respondent in HCCC No. 2 of 2016, which was taxed at Kshs 148,856,561.90, the bulk of it being instruction fees assessed on an alleged subject-matter value of USD 80,000,000. The respondent filed a notice of objection to the entire decision of the taxing officer and a chamber summons under rule 11(2) of the Advocates Remuneration Order. Otieno J held that the blanket objection was not defective, found that the taxing officer had erred in principle in valuing the subject matter at the value of the respondent's whole investment rather than the 12.3-metre wayleave actually in dispute, set aside the taxation and remitted it to another Deputy Registrar. The advocate appealed, contending that the blanket notice breached rule 11(1), that the Judge disregarded stare decisis and usurped the Rules Committee's legislative role, and that the value of the subject matter should have been the full investment. The Court of Appeal dismissed the appeal. It held rule 11(1) is not mandatory and a general objection is a curable procedural technicality absent prejudice; distinguished Machira, where the objection was out of time; and endorsed the principle that the value of the subject matter is the property actually in dispute, not the entire investment, and that fees cannot be based on possible future damage. The High Court ruling was affirmed and costs awarded to the respondent.

Key legal issues

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01

Validity of a blanket notice of objection under rule 11(1) of the Advocates Remuneration Order

Holding

The notice objecting to the entire decision was valid; the requirement to specify items is procedural, non-mandatory and its breach caused no prejudice.

Reasoning

The Court read the notice as a request for reasons on all 26 items in the bill. A party has a right to seek information on matters affecting it. The taxing officer had in any event given reasons for the taxed items and only a reference followed. Since rule 11(1) is not mandatory, the general notice was a procedural technicality unable to justify dismissal.

p. 4
02

Whether the Judge violated stare decisis in departing from Machira & Co. Advocates v Arthur K. Magugu

Holding

No. Machira was distinguishable because there the objection was filed out of time; Kipkorir, Titoo & Kiara in fact supports substantial compliance with rule 11(2).

Reasoning

The Court restated the doctrine of stare decisis but held every case turns on its own facts; where facts are alike courts are bound by precedent. Machira dealt with an out-of-time objection, a different factual matrix, so the Judge's approach was a legitimate distinction, not legislative usurpation.

p. 4
03

Value of the subject matter for purposes of instruction fees

Holding

The subject matter was the 12.3-metre wayleave, not the respondent's USD 80,000,000 investment; the taxing officer therefore erred in principle in valuing the instructions at Kshs 8 billion, and the Judge was right to set aside the taxation.

Reasoning

The suit was settled by consent within months and the pleadings showed the dispute concerned the wayleave area and possible trespass and damage to the pipeline, not the whole investment. Fees must be anchored on what was actually in dispute, not on hypothetical future damage.

p. 5

Legal principles established

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  • A notice of objection under rule 11(1) of the Advocates Remuneration Order need not specify individual items; the requirement is procedural and non-mandatory, and a blanket objection does not warrant dismissal.
  • For instruction fees, the value of the subject matter is what was actually in dispute in the suit, not the party's entire investment; fees for work done cannot take into account possible future damage.
  • A Judge on a reference will not interfere with a taxing officer's discretion except where the taxing officer erred in principle; questions solely of quantum are for the taxing officer.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the respondent
On appeal from
High Court
Misc. Civil Application No. 68 of 2016
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over decisions of the High Court in civil matters (Advocates Act - taxation/reference proceedings)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Muriu Mungai & Company Advocates v China Civil Engineering Construction Corporation (k) Ltd", Case Analysis (2019). Civil Appeal No 78 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/672/eng@2019-05-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.