Desai Sarvia & Pallan Advocates v Tausi Assurance Company Limited [2017] KECA 456 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a law firm cannot charge an insurance client twice for defending two parties in the same case.
What this practically means
#Executive summary
#Key legal issues
#Whether an advocate instructed by one client to represent two defendants in one suit is entitled to separate instruction fees for each defendant
No. The client is the instructing party (the insurer), the advocate was engaged in a single transaction, and only one set of fees is recoverable; separate fees would arise only where each defendant instructs the advocate separately or the engagement covers different transactions.
The court applied the statutory definition of 'client' in Section 2 of the Advocates Act, finding that instructions emanated solely from the respondent insurer. The insurer engaged the advocate to protect its interest in a single transaction; the second defendant's liability automatically gave rise to the first defendant's and the insurer's liability. Charging twice would be unconscionable. Distinguishable where defendants instruct separately or engage the advocate for different transactions.
Which rule of the Advocates (Remuneration) Order governs striking out duplicate bills of costs
Rule 62 does not apply because the advocate filed joint pleadings; the taxing officer's power arose under Rule 16, which permits disallowance of costs not necessary or proper. The High Court Judge erred in invoking Rule 62, but the outcome was the same.
The court read Rule 62 as applicable only where separate pleadings or proceedings are had for two or more clients, confirmed by the rule's marginal note. Applying the Kenyan approach to marginal notes (Visram & Karsan vs Bhatt; Ramadhani vs Republic), the marginal note supported the restrictive reading. Rule 16, permitting disallowance of unnecessary costs, properly grounded the taxing officer's decision.
Standard of appellate review of a ruling on a reference from a taxing officer
Such an appeal is akin to a second appeal governed by Section 72(1) of the Civil Procedure Act and may be allowed only on grounds of law or substantial procedural error.
Relying on Kipkorir Titoo & Kiara Advocates vs Deposit Protection Fund Board, the court framed its review as confined to whether the decision was contrary to law, failed to determine an issue of law, or involved a substantial procedural defect possibly producing error. This framed the limited scope within which the appellant's challenge to the taxing officer's discretion fell.
Legal principles established
#- Where an advocate is instructed by one client (such as an insurer) to defend multiple parties in a single transaction and files joint pleadings, the advocate is entitled to only one set of instruction fees and the taxing officer may strike out duplicate bills of costs under Rule 16 of the Advocates (Remuneration) Order.
- Rule 62 of the Advocates (Remuneration) Order applies only where separate pleadings or proceedings are delivered for two or more clients; it does not apply where an advocate files joint pleadings for defendants instructed by a single client.
- In Kenya, unlike England, marginal notes form part of the enacted statute and may be used in construing its provisions.
- An appeal to the Court of Appeal from a judge's decision on a reference from a taxing officer is akin to a second appeal and can only be allowed on the grounds in Section 72(1) of the Civil Procedure Act.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the respondent
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Misc. Civil Cause No. 785 & 786 of 2013
- Jurisdiction invoked
- First appeal to the Court of Appeal from a High Court ruling on a reference under Rule 11(2) of the Advocates (Remuneration) Order; treated as akin to a second appeal under Section 72(1) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- EE Otieno & Co Advocates v Singh (Miscellaneous Application E105 of 2024) [2025] KEELRC 1143 (KLR)[2025] KEELRC 1143 (KLR)9 Apr 2025applied
- Geyser International Assets Limited v Attorney General & 3 others (Constitutional Petition 209 of 2015) [2024] KEELC 7289 (KLR)[2024] KEELC 7289 (KLR)9 Oct 2024applied
Cite this brief
#Cite this brief
Caselaw, "Desai Sarvia & Pallan Advocates v Tausi Assurance Company Limited [2017] KECA 456 (KLR)", Case Analysis (2017). Civil Appeal No. 280 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/456/eng@2017-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.