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Court of AppealDismissedCivil Appeal No. 151 of 2008

Njagi Wanjiru & Company Advocates v The City Council Of Nairobi [2016] KECA 474 (KLR)

Court of Appeal
24 June 2016
1,388 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Court of Appeal ruled that lawyer's fees must be based on what a client actually wins in court, not inflated claims that failed.

What this practically means

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Executive summary

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The appellant firm of advocates acted for the City Council of Nairobi in Nairobi H.C.C.C. No. 1323 of 1993, a claim for damages arising from the demolition of developments on an allotment at Dandora. The firm filed an Advocate-Client Bill of Costs; the Taxing Officer, by ruling dated 3rd May 2007, certified fees of Kshs.1,442,838.50, valuing the subject matter at Kshs.55 million rather than the Kshs.214,047,280 asserted by the advocates. A reference under Paragraph 11(2) of the Advocates (Remuneration) Order seeking review of that taxation, and remission to another Taxing Officer, was dismissed with costs by Osiemo J on 19th September 2007. The advocates appealed on three grounds, contending that the learned Judge abdicated his jurisdiction, that Part B of Schedule VI applied mandatorily, and that the Taxing Officer disregarded relevant matters. The appeal was determined on written submissions, the respondent having been served but not appearing. The Court of Appeal held that the value of the subject matter was correctly fixed at Kshs.55 million: the claim for Kshs.214 million represented lost profits which the High Court in the underlying suit, per Mugo J, found did not lie in law, a finding never upset, and which the appellant's own counsel had objected to at trial. Finding no error of principle by the Taxing Officer or the High Court, the court dismissed the appeal with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the value of the subject matter of the suit for purposes of instruction and getting-up fees should have been Kshs.214,047,280 as contended by the appellant or Kshs.55 million as found by the Taxing Officer and upheld by the High Court
  2. 2.Whether the High Court and the Taxing Officer erred in principle in the taxation of items 1 and 36 of the Advocate-Client Bill of Costs

Key legal issues

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01

Value of the subject matter for instruction and getting-up fees

Holding

The subject matter value was correctly taken as Kshs.55 million and not the Kshs.214,047,280 claimed, because the High Court in the underlying suit rejected the lost profits claim on which the larger figure rested and that finding was never upset

Reasoning

The court examined the judgment of Mugo J in the underlying suit and found the Kshs.214 million figure related to a claim of lost profits which was found not to lie in law; the appellant's own counsel objected to that claim at trial. The High Court on reference had upheld the Taxing Officer's valuation at Kshs.55 million, and the Court of Appeal found no error of principle in that assessment.

p. 3
02

Alleged error of principle by the Taxing Officer and the High Court

Holding

No error of principle or otherwise was established; the dismissal of the reference under Paragraph 11(2) of the Advocates (Remuneration) Order was correct

Reasoning

The appellant argued the Taxing Officer disregarded relevant matters and failed to apply the mandatory minimum fee rule under Part B of the Schedule. The court, perusing the record and submissions, found no basis in law for enhancement of the fees awarded by the Taxing Officer as upheld by the High Court, and rejected the plea for enhancement.

p. 3

Legal principles established

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  • The value of the subject matter for taxation of instruction fees must be anchored in the reliefs actually found in law by the court in the underlying suit, not on claims that failed or were rejected

Court orders

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  1. 1.Appeal dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya, Nairobi
H.C. Misc Civil Application No. 34 of 2007
Jurisdiction invoked
First appeal from the High Court under the Advocates (Remuneration) Order, Paragraph 11(2) reference process

Relief refused

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Enhancement of instruction fees and getting-up fees as taxed

No error of principle by the High Court or the Taxing Officer; the claim for Kshs.214 million as subject matter was untenable given the High Court judgment in the underlying suit

p. 3

Costs

Appeal dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In our view, there is no error of principle or otherwise by the High Court or by the Taxing Officer and we see no basis in law for the claim for enhancement of the fees awarded to the appellants by the Taxing Officer which the High Court upheld.
p. 3Error of principle in taxation
We reject the appellant's plea for enhancement of the fees as we find no merit in the appeal which we hereby dismiss with costs to the respondent.
p. 3Final orders and disposition
The High Court made a finding in the said judgment that the sum of Shs.214,047,280/= claimed by the plaintiffs during the hearing of the suit “on the basis of the statement of affairs” did not lie in law. That finding has not been upset or reversed.
p. 3Value of subject matter for fees

Issues in the judgment

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minor

The judgment refers to the High Court Miscellaneous Civil Application inconsistently as No.34 of 2007 in the title and No.54 of 2007 in the body

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Njagi Wanjiru & Company Advocates v The City Council Of Nairobi [2016] KECA 474 (KLR)", Case Analysis (2016). Civil Appeal No. 151 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/474/eng@2016-06-24

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