R. Billing & Co. Advocates v Kundan Singh Construction Limited (Now KSC International Limited) [2020] KECA 544 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that advocates cannot inflate fees based on bank guarantee sums unless the lawsuit actually claims that money.
What this practically means
#Executive summary
#Key legal issues
#Whether instruction fees should be assessed on the sums covered by the bank guarantees referred to in the plaint
No. The suit's principal purpose was to obtain injunctive and declaratory relief restraining the bank from calling in the guarantees; the sums in the guarantees did not constitute the value of the claim, and the taxing officer properly exercised his discretion.
The court held that where there is no judgment or settlement, the value of the subject matter must be determined from the pleadings. The plaint sought injunctions and declarations restraining calls on guarantees, not recovery of a specific monetary sum. The advocate was only involved in filing the plaint, seeking an injunction and replying to defences - work that was brief and uncomplicated. The fee of Kshs.2,687,247 was proportionate to the work done and far above the scheduled basic fee of Kshs.3,000 for an injunction application.
The standard for appellate interference with a taxing officer's assessment of costs
Interference is only warranted where the taxing officer misdirected himself, or where the award is so high or so low as to amount to an injustice; courts must extend latitude to taxing officers on questions of quantum.
Relying on Ouma vs Warega and Premchand Raichand, the court reiterated that taxation is a matter of opinion based on experience, not a mathematical exercise. The reviewing and appellate courts must bear in mind that there is no mathematical formula for calculating instruction fees and that the exercise involves an intricate balancing act; a compelling reason is required to justify interference with a reasonable fee.
Whether advocates' fees may be set at a level that impedes access to justice
No. Advocates' remuneration should never be at such a level as to amount to an impediment to access to justice.
Invoking the Supreme Court of Uganda's warning in Paul Ssemogerere vs Attorney General, the court observed that while the successful party is entitled to reimbursement of expenses reasonably incurred in litigation, high costs of litigation would make courts a preserve only of the wealthy. The demand for fees of over Kshs.32 million for merely filing a suit for declaratory and permanent injunctive orders was unsustainable.
Legal principles established
#- The value of the subject matter for purposes of taxation of a bill of costs is to be determined from the pleadings, judgment or settlement; where it is not so ascertainable, the taxing officer may exercise discretion to assess a just instruction fee taking into account all relevant circumstances.
- An appellate or reviewing court will not lightly interfere with a taxing officer's assessment of costs; interference is justified only where the award is so high or so low as to amount to an injustice or where there is a misdirection on principle.
- Sumfigures secured by guarantees or injunctive relief sought do not automatically constitute the value of the subject matter for instruction fees where no claim for recovery of a specific sum is made.
Court orders
#- 1.Appeal dismissed with costs to the respondent
- On appeal from
- High Court of Kenya at Nairobi, Commercial & Admiralty Division
- Misc Cause No. 291 of 2010
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (the judgment describes its 'mandate in first appeals, such as this one')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "R. Billing & Co. Advocates v Kundan Singh Construction Limited (Now KSC International Limited) [2020] KECA 544 (KLR)", Case Analysis (2020). Civil Appeal No. 254 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/544/eng@2020-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.