Joseph Kithinji Gitonga & another v Kiogora Mutai & Company Advocates [2017] KECA 469 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that disputes over a lawyer's 'facilitation fees' must be raised during the formal taxation of the legal bill, not used to block it, and advocates may keep client documents until fees are paid.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned judge properly exercised his discretion in declining to stay the taxation of the respondent's Bills of Costs
- 2.Whether the inclusion of an item referred to as 'facilitation fees' in the fee note demands rendered the Bills of Costs illegal and incapable of being taxed
- 3.Whether the respondent was entitled to retain the lease documents as a lien for outstanding fees
- 4.Whether the learned judge exercised his discretion judiciously in ordering each party to bear its own costs, and whether reasons were required for denying costs to the successful party
Key legal issues
#Whether the alleged illegality of 'facilitation fees' rendered the Bills of Costs incapable of being taxed and justified a stay of taxation
No. The purport of the facilitation fee item was not apparent from the material, and determination of whether items fall within the Advocates Remuneration Order or are illegal payments is for the taxing master, with recourse to the High Court by reference under Paragraph 11.
The Court reviewed the fee notes and found the nature of the facilitation fees unclear - they might be payments to officials or legitimate disbursements under rule 19 such as stamps, valuation charges and search fees. Notably, the Bills of Costs themselves contained no facilitation fee item, only 'ancillary registration charges'. The taxing master, empowered under Paragraph 13A to summon witnesses and direct production of documents, is the proper forum to interrogate such items. The judge therefore properly exercised his discretion in declining the stay.
Whether the respondent was entitled to retain the lease documents as a lien
Yes. Having found that legal fees had been incurred, the court below properly protected the advocate's lien under Order 52 rule 4(3) of the Civil Procedure Rules.
The respondent had been retained for the conveyance of 20 apartments and incorporation of a management company, and its fees remained unpaid since 2006. Order 52 rule 4(3) permits the court, where there is a claim for costs, to secure payment and protect the advocate's lien. The Court of Appeal found no reason to interfere with the judge's order protecting the lien over the retained lease documents.
Whether the judge's order that each party bear its own costs was a proper exercise of discretion
No. The respondent was the successful party below, yet no reasons were given for denying it costs; the costs order was set aside and costs awarded to the advocate in both courts.
Section 27(1) of the Civil Procedure Act provides that costs follow the event, though costs remain discretionary and appellate interference is limited. However, following Devram Dattan and James Koskei Chirchir, the discretion must be judicial and based on facts; where a successful litigant is denied costs, reasons must be given. The judge here gave none, constituting an error justifying appellate intervention.
Legal principles established
#- An appellate court will not interfere with the exercise of discretion by a single judge unless the judge misdirected himself, arrived at a wrong decision, or was clearly wrong in the exercise of discretion resulting in misjustice
- Unless divested of jurisdiction, the taxing master is obliged to tax Bills of Costs and has authority to interrogate the purpose of any item in a Bill, including whether items are illegal payments capable of rendering the Bill invalid; challenges to items belong in taxation and, on dissatisfaction, a reference to a judge under Paragraph 11 of the Advocates (Remuneration) Order
- Where a successful party is denied costs, the court must provide reasons; a bare order that each party bear its own costs without explanation is erroneous and liable to be set aside
Court orders
#- 1.The appeal on the stay of taxation and release of lease documents (Civil Appeal No. 41 of 2015) is dismissed; the learned judge's refusal of stay and protection of the advocate's lien is upheld
- 2.The order that each party bear its own costs is set aside
- 3.The appellant in Civil Appeal No. 56 of 2015 (Kiogora Mutai & Company Advocates) is awarded costs in the High Court and in this Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Milimani Law Courts
- HC ELC No. 554 of 2014
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal over the High Court under the Constitution and the Court of Appeal Act (not expressly cited in the judgment)
- Consolidated with
- Civil Appeal No. 56 of 2015 (Kiogora Mutai & Company Advocates v Joseph Kithinji Gitonga & another)
Relief refused
#Stay of the taxation proceedings and quashing of the Bills of Costs on grounds of alleged illegality of facilitation fees
The taxing master has jurisdiction to interrogate the purpose of items in a Bill, including whether they are illegal payments; objections are for taxation and, if necessary, a reference under Paragraph 11
Release of the lease documents retained by the respondent
The respondent is entitled to a lien over the documents for outstanding fees, protected by Order 52 rule 4(3) of the Civil Procedure Rules
Costs
The order that each party bear its own costs was set aside; the appellant in Civil Appeal No. 56 of 2015 (Kiogora Mutai & Company Advocates) shall have costs in the High Court and in this Court.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
a Court of Appeal should not interfere with the exercise of the discretion of a single judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision
unless divested of jurisdiction, the taxing master has an obligation under the Advocates Remuneration Order to tax the Bills of Costs, and the requisite authority to interrogate the purpose of any of the items included in the Bill
such matters are better left to a taxing master for determination, and, in the event the appellants are dissatisfied with the taxing master's decision, they would be entitled to seek further recourse in the High Court under Paragraph 11
we would therefore set aside the order on costs, and in their place order that the appellant shall have costs in the High Court and in this Court. It is so ordered.
Issues in the judgment
#Internal date inconsistency: the respondent's replying affidavit is described as sworn on 28th May 2011, which precedes the Notice of Motion of 22nd May 2014 it responds to
Counsel for the respondent is named 'Mr. Kimathi' on first appearance and 'Mr. Kimani' in the costs discussion, apparently referring to the same counsel
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Kithinji Gitonga & another v Kiogora Mutai & Company Advocates [2017] KECA 469 (KLR)", Case Analysis (2017). Civil Appeal No. 41 of 2015 (consolidated with Civil Appeal No. 56 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/469/eng@2017-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.