Otieno, Ragot & Company Advocates v Kenya Airports Authority [2021] KECA 587 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that once party-and-party costs are taxed, an advocate's instruction fees are fixed by formula—here worth Kshs. 196 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the taxing officer could re-determine instruction fees when party and party costs in the same suit had already been taxed and certified
No. The taxed party and party certificate fixed the instruction fees finally; the taxing officer was bound to apply the Schedule VI Part B formula (increase by 50%) rather than exercise a fresh discretion based on public interest.
Section 51(2) of the Advocates Act makes the certificate of taxation final unless set aside or altered. The party and party bill was taxed and certified on 15 July 2010 and never challenged. The instruction fees were therefore effectively disposed of and could not be reopened by another taxing court of concurrent jurisdiction. Schedule VI Part B leaves no discretion once Part A is determined; the formula is arithmetical. Failing to apply it, and instead relying on public interest, was an error of principle.
Whether the High Court erred in upholding the taxing officer's disregard of the certificate of costs
Yes. The learned judge rightly acknowledged the Part B formula was mandatory but then endorsed the taxing officer's failure to consider the certificate, a contradiction amounting to a grave misdirection.
The judge's conclusion that the formula in Schedule 6 Part B must be adhered to, coupled with the finding that the taxing officer did not err in ignoring the certificate of costs, was internally contradictory. Upholding the taxing officer's disregard of the unchallenged certificate was tantamount to permitting the taxing officer to sit on appeal over her coordinate's decision. The judge therefore took into account irrelevant matters and reached the wrong conclusion, warranting appellate interference.
Whether the value of the subject matter was ascertainable from the pleadings
Yes (majority). The plaint specifically pleaded Kshs. 13,932,000,000 as special damages and the decree acknowledged the claim; that figure was the value of the subject matter for taxation.
Under Order 2 and Order 4 of the Civil Procedure Rules a pleading must contain only material facts, not evidence, and a plaint seeking recovery of money must state the precise amount claimed. The plaintiffs complied by pleading Kshs. 13,932,000,000. Whether the claim would succeed on evidence was irrelevant to taxation, since the suit was struck out before trial. The value was therefore ascertainable from the pleadings, per Joreth Ltd v Kigano & Associates.
From what date interest on taxed costs accrues under rule 7
Interest under rule 7 accrues from the expiry of one month from delivery of the bill or fee note, but the rule was not engaged because interest was not claimed in the Bill of Costs.
Rule 7 clearly stipulates that interest at 14% per annum runs from one month after delivery of the bill, so the judge's reasoning that the rule does not specify a start date was a misdirection. However, the appellant's Bill of Costs did not include a charge for interest, which is the basis on which the taxing officer computes amounts due; that omission negates rule 7 and leaves interest to the court's discretion under section 26 of the Civil Procedure Act. No basis for 14% interest was established.
Legal principles established
#- Once party and party costs in the same suit have been taxed and a certificate of costs issued, the instruction fees therein are final and binding and must be increased by one-half under Schedule VI Part B to determine advocate and client instruction fees; no further discretion arises.
- Advocate and client costs cannot be ascertained independently of party and party costs; Part B is an arithmetical computation derived from Part A.
- A certificate of the taxing officer is final as to the amount of costs covered unless set aside or altered by the Court.
- Interest under rule 7 of the Advocates Remuneration Order begins to accrue from the expiry of one month from the date of delivery of the bill or fee note.
- An appellate court will not interfere with a taxing officer's discretion unless the taxing officer erred in principle.
Court orders
#- 1.The appellant's instruction fees are taxed in terms of Schedule VI Part A and B of the Advocates Remuneration Order in the sum of Kshs. 196,044,750.50
- 2.The ruling and orders of the High Court on instruction fees and interest are set aside
- 3.Each party to bear their own costs in this Court and in the lower courts
- On appeal from
- High Court of Kenya at Nairobi
- Miscellaneous Application No. 95 of 2011
- Jurisdiction invoked
- First appeal to the Court of Appeal against the High Court's decision on a reference from taxation (Advocates Act; Court of Appeal appellate jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Lubulella Associates v Kitongi Investments Ltd & 2 others (Environment and Land Miscellaneous Application E014 of 2021) [2026] KEELC 3473 (KLR)[2026] KEELC 3473 (KLR)9 Jun 2026followed
- Onyinkwa t/a Onyinkwa & Company Advocates v Kendagor (Environment and Land Miscellaneous Application E006 of 2024) [2025] KEELC 7823 (KLR)[2025] KEELC 7823 (KLR)13 Nov 2025applied
- Muri Mwaniki & Wamati Advocates v Museum View Office Suits Limited (Environment and Land Miscellaneous Application 28 of 2018) [2025] KEELC 7566 (KLR)[2025] KEELC 7566 (KLR)4 Nov 2025followed
- Eduardo Zinna t/a Villa Zuhura v John Bwire & Associates Advocates (Miscellaneous Application E010 of 2025) [2025] KEELRC 2001 (KLR)[2025] KEELRC 2001 (KLR)8 Jul 2025applied
- Momanyi t/a Nchogu, Omwanza and Nyasimi Advocates v Kenyatta National Hospital (Miscellaneous Application 21 of 2019) [2025] KEELRC 1934 (KLR)[2025] KEELRC 1934 (KLR)30 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "Otieno, Ragot & Company Advocates v Kenya Airports Authority [2021] KECA 587 (KLR)", Case Analysis (2021). Civil Appeal No. 39 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/587/eng@2021-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.