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Court of AppealPartially AllowedCivil Appeal 69 of 2020· [2022] KECA 578 (KLR)

Kenya Ports Authority Pension Scheme & 8 others v Kinyua Muyaa & Co. Advocates

Court of Appeal
6 May 2022
15,020 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~60 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal threw out a Kshs 87 million legal fee award because it was based on speculative figures, and ordered the bill to be re-taxed.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Gatembu Kairu, Nyamweya and Lesiit, JJA) disposed of two matters: the Advocates' application to strike out the appeal for an incomplete record, and the Pension Scheme's substantive appeal against the ELRC ruling (Rika, J.) which dismissed its reference and entered judgment for the Advocates on a taxed advocate-client bill of Kshs 87,139,560.45. The strike-out application was dismissed: the 2010 Court of Appeal Rules do not preserve the primary/secondary document distinction, omissions are curable under Rules 88 and 92(1), and striking out would have been disproportionate. On the appeal, the Court held that the question of the ELRC Deputy Registrar's jurisdiction to tax the bill was res judicata, the identical issue having been determined in unappealed rulings of 2015 and 2017. The Court nonetheless found that the taxing officer committed an error of principle in the second taxation by deriving a speculative Kshs 2 billion value of the subject matter from future accruals, interest and pension arrears extraneous to the pleadings, judgment or settlement; the correct value ascertainable from the judgment in the primary suit was the decreed Kshs 201,981,424.50. Nyamweya JA added that the ELRC's jurisdiction under the Advocates Act is distinct from that overturned by the Supreme Court in the Chaurembo Decision, and that the awards of interest and VAT were also erroneous. The appeal was allowed in part: the ruling of 17 July 2020 and the taxation of 24 April 2020 were set aside, and the bill was remitted to another taxing officer for re-taxation of instruction fees and getting up fees only, with each party bearing its own costs of the appeal and the applications below.

Key legal issues

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01

Whether the appeal was incompetent for an incomplete record of appeal

Holding

The appeal was competent; the omitted documents were curable under Rules 88 and 92(1) of the Court of Appeal Rules, the reference to 'primary documents' in post-2010 decisions is a relic of the 1972 rules, and striking out would be disproportionate.

Reasoning

The 2010 Rules, unlike the 1972 East African rules, do not distinguish primary and secondary documents. Rule 88 permits an appellant to include omitted documents in a supplementary record within 15 days, and Rule 92(1) permits a respondent who considers the record defective to lodge a supplementary record. The impugned ruling, decree, applications and submissions were in the record, and counsel was not constrained at the hearing.

p. 10
02

Whether the jurisdiction of the ELRC Deputy Registrar to tax the advocate-client bill was res judicata

Holding

Yes. The same parties had raised the identical jurisdictional challenge three times before the same court; the rulings of 18 September 2015, 18 November 2015 and 13 October 2017 were never appealed, so the issue was conclusively determined.

Reasoning

Applying the Supreme Court's elements of res judicata in Florence Maritime Services (as stated in Sami v Canada), the court found a former final decision on the merits by a court with jurisdiction, identical parties, subject matter and issue. The Client's submission to successive taxation proceedings without appeal reinforced the finality of the earlier rulings.

p. 12
03

Whether the ELRC has jurisdiction to tax advocate-client bills of costs notwithstanding the Chaurembo Decision

Holding

The Court declined to decide the point afresh, being res judicata, but indicated that the Supreme Court's setting aside of the primary suit judgment did not remove the ELRC's power to assess costs or the advocates' accrued right to fees.

Reasoning

Nyamweya JA added that the Chaurembo Decision addressed the ELRC's jurisdiction over the pension dispute, not its separate statutory jurisdiction under the Advocates Act to tax advocate-client costs, and no constitutional limitation bars the ELRC from assuming that jurisdiction given its status equal to the High Court under Article 162(2).

p. 20
04

Whether the taxing officer erred in principle in the second taxation

Holding

Yes. The taxing officer based instruction fees on a speculative Kshs 2 billion 'value of the subject matter' derived from future accruals, interest and pension arrears extraneous to the pleadings, judgment or settlement, and the Judge erred in upholding that taxation.

Reasoning

Under Schedule VI and Joreth Ltd v Kigano, the value of the subject matter must be determined from the pleadings, judgment or settlement. The only ascertainable value from the judgment in the primary suit was the decreed Kshs 201,981,424.50. Failure to ascribe the correct value is an error of principle, and the resulting award was manifestly excessive, approaching half the decreed amount.

p. 17
05

Whether the awards of interest and VAT were sustainable

Holding

No. The basis for 14% interest was not evident as no interest charge appeared in the bill, the legal basis and rate for the additional interest from April 25, 2020 were not stated, and VAT fell with the erroneous instruction fees.

Reasoning

Nyamweya JA distinguished two stages of interest: 14% interest during taxation under Rule 7 of the Remuneration Order (only if claimed in the bill) and post-judgment interest under section 27(2) of the Civil Procedure Act. Neither basis was established on the record; and since VAT was computed on fees awarded in error, it too was awarded in error.

p. 23

Legal principles established

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  • A challenge to a taxing officer's jurisdiction, once determined and not appealed, becomes res judicata and cannot be relitigated before a judge of the same court on a later reference.
  • The setting aside of a judgment for want of jurisdiction does not extinguish an advocate's accrued right to fair compensation for services rendered in those proceedings.
  • The value of the subject matter for taxation must be ascertained from the pleadings, judgment or settlement; basing instruction fees on speculative future accruals is an error of principle.
  • Under the 2010 Court of Appeal Rules, omissions from a record of appeal are curable under Rules 88 and 92(1), and a competent appeal should not be struck out for such omissions.
  • An appellate court will not interfere with a taxing officer's award unless there is an error of principle or the award is so excessive or low as to amount to an injustice.

Court orders

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  1. 1.The respondent's application dated 14th October 2020 to strike out the appeal is dismissed with costs
  2. 2.The ruling of the learned Judge of the ELRC dated July 17, 2020 in ELRC Mombasa Misc. Application No. 13 of 2015 is set aside in its entirety
  3. 3.The ruling and orders issued by the taxing officer on April 24, 2020 taxing the Advocates' Advocate and Client Bill of Costs dated July 2, 2019 at Kshs. 87,139,560.45 are set aside arising from the setting aside of the findings and taxing of item 1 on instruction fees, item 2 on getting up fees, and the awards of interest and VAT
  4. 4.The Advocates' Advocate and Client Bill of Costs dated July 2, 2019 is remitted to another taxing officer in the ELRC at Mombasa for re-taxation of items 1 and 2 only, and award of any interest and VAT claimed, taking into account the applicable principles set out in the judgment
  5. 5.Each party shall meet their respective costs of the applications that were the subject of the ruling by the learned Judge dated July 17, 2020, and of this appeal

Authorities

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Legislation

  • Appellate Jurisdiction ActSections 3(3), 3A and 3B
  • Court of Appeal RulesRules 84, 87, 88, 92
  • Advocates (Remuneration) Order, Legal Notice No. 159 of 2006Schedule VI Parts A and B; Paragraph 11; Rules 7, 10, 16, 50 and 50A; paragraph 57
  • Civil Procedure ActSections 26, 27, 68 and 72(1)
  • Employment and Labour Relations Court Act, 2011Sections 12 and 27(2)(b)
  • ELRC (Procedure) Rules, 2016Rule 29
  • Advocates ActSection 2
  • Constitution of Kenya, 2010Articles 162(2), 163(4) and 165
  • Retirement Benefits ActMechanisms for dispute resolution (as considered in the Chaurembo Decision)
  • Value Added Tax Act, 2013Charge on legal services

Cases cited (24)

  • Republic v Karisa Chengo & 2 others
    [2017] eKLR

    Distinction in status between the ELRC and the High Court

  • Albert Chaurembo Mumba & 7 others v Munyao & 148 others
    [2019] eKLR; Petition No. 3 of 2016

    ELRC had no jurisdiction over the primary suit; judgment set aside

  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] KLR 1

    Without jurisdiction, a court has no power to take any step

  • Macfoy v United Africa Co Ltd
    [1961] 3 All E R 1169

    A void act is in law a nullity

  • Salama Beach Hotel Limited and 3 others v Kenyariri & Associates Advocates
    [2017] eKLR

    Appeal lacking the extracted order or decree is incurable and must be struck out

  • Floris Pierro v Giancarlo Falasconi (as Administrator of the Estate of Santuzza Billioti alias Mei Santuzza)
    [2014] eKLR

    Omission of a primary document from the record is not a procedural technicality

  • Mohamed Aden Abdi v Abdi Nuru Omar & 2 others
    [2007] eKLR

    Inherent power to strike out an appeal with an incomplete record

  • Sacco Societies Regulatory Authority v Biashara Sacco Society Ltd
    [2013] eKLR

    Omission curable under Rule 92; respondent may lodge a supplementary record

  • Mucuha v Ripples Ltd
    [2001] eKLR

    Primary and secondary categories of documents in a record of appeal

  • Florence Maritime Services Ltd v Cabinet Secretary Transport, Infrastructure & 3 others
    [2021] eKLR

    Doctrine of res judicata and its elements

  • Sami v Canada (Citizenship and Immigration)
    2012 FC 539 (CanLII)

    Preconditions for res judicata

  • J. M. Njenga & Co Advocates v Kenya Tea Development Limited
    Misc. Application No. 616 of 2006

    Assessment of advocate-client costs by reference to party and party costs (cited by the Client)

  • Kipkorir, Tito & Kiara Advocates v Deposit Protection Fund Board
    [2005] eKLR

    Interference with judicial discretion on a reference only on wrong principles of law

  • Otieno, Ragot & Company Advocates v Kenya Airports Authority
    [2021] eKLR

    Reluctance to interfere with quantum; majority rule that taxed party and party costs be increased by one half

  • Mbogo v Shah
    (1968) EA 93

    Appellate court will not interfere with discretionary decision unless mis-justice results

  • Premchand Raichand Limited & another v Quarry Services of East Africa Limited and another
    [1972] E.A 162

    Taxation is not a mathematical exercise; interference only where award so high or low as to be unjust

  • Joreth Ltd v Kigano & Associates
    [2002] 1 EA 92

    Value of subject matter determined from pleadings, judgment or settlement

  • Kamunyori & Company Advocates v Development Bank of Kenya Limited
    Civil Appeal 206 of 2006

    Failure to ascertain or correctly value the subject matter is an error of principle

  • Stanley N. Muriithi & Another v Bernard Munene Ithiga
    (2016) eKLR

    Second appeal confined to matters of law

  • Otieno, Ragot & Company Advocates v National Bank of Kenya Limited
    [2020] eKLR

    Confirmation of the scope of second appeals

  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    SC Application No. 2 of 2011 [2012] eKLR

    A court's jurisdiction flows from the Constitution or legislation

  • Kithi & Co Advocates v Menengai Downs Limited
    (2015) eklr

    Entitlement to 14% interest on a taxed fee note under Rule 7

  • J.P Macharia T/a Macharia & Advocates v MDC Holdings Ltd & 2 others
    Milimani Commercial Courts H.C.C.C. NO. 1549 of 2001

    Legal services are chargeable with VAT

  • Pyramid Motors Limited v Langata Gardens Limited
    [2015] eKLR

    VAT is chargeable on legal services

On appeal from
Employment and Labour Relations Court at Mombasa
ELC Misc. Application No. 13 of 2015
Jurisdiction invoked
Sections 3(3), 3A and 3B of the Appellate Jurisdiction Act; second appeal restricted to matters of law under Section 72(1) of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Ports Authority Pension Scheme & 8 others v Kinyua Muyaa & Co. Advocates", Case Analysis (2022). Civil Appeal 69 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/578/eng@2022-05-06

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