Kenya Ports Authority Pension Scheme & 8 others v Kinyua Muyaa & Co. Advocates
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the appeal was incompetent for an incomplete record of appeal
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.
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.
Whether the jurisdiction of the ELRC Deputy Registrar to tax the advocate-client bill was res judicata
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.
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.
Whether the ELRC has jurisdiction to tax advocate-client bills of costs notwithstanding the Chaurembo Decision
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.
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).
Whether the taxing officer erred in principle in the second taxation
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.
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.
Whether the awards of interest and VAT were sustainable
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.
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.
Legal principles established
#- 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
#- 1.The respondent's application dated 14th October 2020 to strike out the appeal is dismissed with costs
- 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.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.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.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
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- James Mushanki v Mombasa Cement Limited & another[2026] KEELC 6303 (KLR)1 Oct 2026applied
- Farida Hemed v Kenya Orient Insurance Company Ltd[2026] KECA 1479 (KLR)24 Jul 2026applied
- Kenya Electricity Transmission Company v Nyandoro & Co. Advocates (Environment and Land Miscellaneous Application E003 of 2024) [2025] KEELC 1392 (KLR)[2025] KEELC 1392 (KLR)20 Mar 2025applied
- Ouya & another (Suing as personal representatives of the Estate of the late Faith Judith Ouya) v Gicimu as personal representative of the estate of the Late Uwe Kerschek & 2 others[2022] KECA 1273 (KLR)18 Nov 2022
Cite this brief
#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.