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Court of AppealDismissedCivil Appeal (Memorandum of Appeal by KTK Advocates)· [2021] KECA 192 (KLR)

KTK Advocates v Rosa & Associati (Civil Appeal 420 of 2019) [2021] KECA 192 (KLR)

Court of Appeal
5 November 2021
AMA.K. MurgorSKS. ole KantaiJLJ. Lesiit
2,090 words in judgment
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The bottom line

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The Court of Appeal ruled that Kenyan lawyers cannot charge fees wildly out of proportion to the work they actually did.

What this practically means

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Executive summary

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The appellant, KTK Advocates, was instructed by the respondent, Rosa & Associati, a athletes' management company, to intervene in the lifting of a suspension imposed by Athletics Kenya on doping allegations against some of its athletes. The work involved correspondence by letters and emails; the suspensions were ultimately lifted, with the parties disputing whether this was due to the appellant's efforts or the intervention of the IAAF. The appellant rendered a fee note dated 15th October 2015 asking for instruction fees of US$20,000, but later presented an advocate/client bill of costs charging US$2,000,000 (Ksh.203,610,000) on item 1. The Taxing Master taxed item 1 at Ksh.5,000,000, producing a grand total of Ksh.8,346,658. The respondent's reference succeeded before L. Njuguna, J., who found the award on item 1 excessive given the non-litigious nature of the work, and remitted item 1 for re-taxation before a different Taxing Master. The appellant appealed on eleven grounds, contending among others that the reference did not comply with mandatory provisions of law and that the Judge had no basis for interfering with the Taxing Master's decision. The Court of Appeal (Murgor, ole Kantai and Lesiit, JJ.A) held that the respondent had objected as required by the Advocates (Remuneration) Order and the Judge was entitled to deal with the reference. Agreeing with the Judge that the instructions involved no more than an exchange of correspondence with no written opinion delivered, and noting the appellant's own fee note sought US$20,000, the Court found no merit in the appeal and dismissed it with costs to the respondent, saying as little as possible so as not to fetter the hands of the judicial officers who would handle the re-taxation. The decision binds subordinate courts and taxing officers: advocates' fees must be commensurate with the work actually done and must not inhibit access to justice.

Key legal issues

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01

Jurisdiction of the High Court Judge over the Rule 11 reference

Holding

The grounds of appeal challenging the Judge's jurisdiction over the reference had no substance; the respondent had objected to the taxation award as required and the Judge was entitled to determine the reference.

Reasoning

The application before the Judge was brought under Rule 11(2) of the Advocates (Remuneration) Order and Section 3A of the Civil Procedure Act. The Court held that the respondent had objected to the taxation award as the Order required, and therefore the Judge was properly seized of the reference. The appellant's contention that the reference did not comply with mandatory provisions of law failed, as did the other grounds of appeal.

p. 5
02

Whether the Taxing Master's award of Ksh.5,000,000 for instructions fees was excessive

Holding

The Court agreed with the Judge that the work done consisted only of an exchange of correspondence, with no written opinion, and that the advocate's own fee note sought US$20,000, far less than the Taxing Master's award; the remittal for re-taxation was justified.

Reasoning

The instructions to the appellant involved writing letters and emails to Athletics Kenya and its lawyers; no written opinion was delivered. The appellant's own fee note of 15th October 2015 asked for instruction fees of US$20,000, which translated to a sum much less than the Ksh.5,000,000 awarded. The Judge was entitled to find the award excessive and commensurateness with work done is the governing principle.

p. 4

Legal principles established

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  • An advocate's fees must be commensurate with the work actually done and must not be so excessive as to inhibit access to justice, even where the Taxing Master has a discretion in assessing instruction fees.
  • A Taxing Master's discretion in assessing instructions fees, though wide, must be exercised in a manner that is just and fair in the circumstances of the case, and a fee note presented by the advocate is a relevant benchmark against an excessive award.
  • An objector who complies with the Advocates (Remuneration) Order in lodging a reference is entitled to have the judge deal with that reference, and such a reference is properly before the court.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent

Authorities

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Legislation

  • Advocates (Remuneration) OrderRule 11(2)
  • Advocates (Remuneration) OrderSchedule V
  • Civil Procedure ActSection 3A

Cases cited (2)

  • Moronge & Company Advocates v Kenya Airports Authority
    [2014] eKLR
  • First American Bank of Kenya vs. Shah and Others
On appeal from
High Court of Kenya
Jurisdiction invoked
First appeal to the Court of Appeal against a High Court ruling on an advocate/client bill of costs reference under Rule 11 of the Advocates (Remuneration) Order

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, "KTK Advocates v Rosa & Associati (Civil Appeal 420 of 2019) [2021] KECA 192 (KLR)", Case Analysis (2021). Civil Appeal (Memorandum of Appeal by KTK Advocates). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/192/eng@2021-11-05

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