Kenyariri & Associates Advocates v Salama Beach Hotel Ltd & 4 others [2014] KEELC 214 (KLR)
The bottom line
#Kenya's High Court clarified how advocates' fees are taxed: fees follow the court's final award, counter-claims count as separate suits, and only the advocate who drafted the claim earns full instruction fees.
What this practically means
#Executive summary
#Key legal issues
#Basis of instruction fees where an award has been made
The taxing officer rightly used the amount awarded by the court rather than the amount claimed in Misc. Application No. 13 of 2013.
The court reasoned that when a bill of costs is taxed before determination, the pleaded amount applies, but once the court has made an award the taxing officer must use the awarded figure when calculating instruction fees. In Misc. 13 of 2013 the taxing officer used the taxed award of Ksh. 2,916,814, following the Lubellellah decision, and therefore committed no error of principle.
Instruction fees in judicial review/constitutional matters
Instruction fees in such matters are not pegged on the value of the subject matter; the award of Ksh. 400,000 in Misc. No. 14 of 2013 was properly made.
Relying on R vs Minister of Agriculture, ex-parte Samuel W. Njuguna, the taxing officer treated judicial review proceedings as purely public law proceedings free of private business arrangements or earnings. The court agreed that the nature of the matter was judicial review and that the ascertainable value of the property was immaterial except to show complexity. Considering the complexity and research required, the taxing officer did not err in principle.
Instruction fees in Misc. No. 15 of 2013 based on a re-taxed bill
The instruction fees were re-taxed at Kshs. 79,689 because the underlying bill had been re-taxed at Kshs. 1,179,255, not Kshs. 17,900,720.
The underlying bill in Katunga Mbuvi & Co. Advocates v Salama Beach Hotel Limited had been re-taxed and the award reduced to Kshs. 1,179,255. Since the court must use the current awarded figure, the taxing officer erred in using the earlier figure of Ksh. 17,900,720. The court re-computed instruction fees at Kshs. 79,689 and allowed the Respondents' application on this point.
Entitlement of a subsequent advocate to full instruction fees
In Misc. No. 16 of 2013 the Applicant, who did not draw the Plaint and only filed two applications, was properly awarded Kshs. 300,000 for the applications only.
Following First American Bank of Kenya v Shah, an advocate becomes entitled to full instruction fees upon filing a defence, and the advocate who draws a Plaint earns the full instruction fees regardless of progress. Subsequent advocates can only be paid for actual work done. Having not drawn the Plaint in HCCC No. 118 of 2009, the Applicant could not claim the suit's full instruction fees, only for the two applications he drew and prosecuted.
Instruction fees on a counter-claim (Misc. No. 17 of 2013)
A counter-claim is in all respects a suit by the defendant; the Applicant is entitled to instruction fees of Kshs. 1,226,500 on the counter-claim of Kshs. 84,000,000.
The taxing officer awarded full instruction fees for the defence but none for the counter-claim. The court held that a counter-claim contains assertions the defendant could have made by starting a lawsuit and is governed by nearly the same rules as a plaintiff's claim, so it is a suit in all respects. The taxing officer erred in not awarding instruction fees on it, and the court awarded Kshs. 1,226,500.
Watching brief and the vehicle agreement deduction
The award of Ksh. 100,000 for a watching brief in Misc. No. 41 of 2013 was not disturbed, and the taxing officer was entitled to disregard the unsigned vehicle agreement in assessing payments.
No good reason was given to interfere with the taxing officer's discretion on the watching brief award. On the vehicle agreement, the document on its face showed the lender as Accredo Ag and the Applicant as borrower, was signed only on behalf of the lender, and there was no indication the Applicant signed it. Consequently, the taxing officer could not be faulted for disregarding it, and only JPY 1,160,000 was accounted for by the agreement.
Legal principles established
#- A Judge on a reference will not interfere with a taxing officer's discretion unless the taxing officer erred in principle, for example where costs allowed are so manifestly excessive as to justify an inference of erroneous principles.
- If an advocate taxes a bill before the matter is determined, instruction fees are based on the pleaded amount; once an award has been made, the figure awarded by the court is used.
- In constitutional and judicial review matters, instruction fees are not pegged on the value of the subject matter.
- Instruction fees are only payable to an advocate in respect of work done; the advocate who draws a Plaint or files a Defence earns the full instruction fees, and subsequent advocates are paid only for actual work done.
- A counter-claim is in all respects a suit by the defendant, attracting its own instruction fees.
- The burden of showing what has been paid to the advocate lies with the client who alleges payment.
Court orders
#- 1.The Applicant's Chamber Summons dated 14th June 2014 is allowed in respect to instruction fees payable on the Counter claim in Miscellaneous Application number 17 of 2013 only; the payable instruction fees on the counter claim is Kshs. 1,226,500 which shall be increased by half less VAT and added to the already taxed bill of costs
- 2.The other prayers in the Applicant's Chamber Summons dated 14th June 2014 are dismissed
- 3.The Respondents' Chamber Summons dated 25th June 2014 in respect to Miscellaneous Application number 15 of 2013 is allowed; the payable instruction fees is Kshs. 79,689 and not Kshs. 330,510, to be increased by a half less VAT
- 4.The other prayers in the Respondents' Chamber Summons dated 25th June 2014 are dismissed
- 5.Each party shall bear their own costs
- Jurisdiction invoked
- Rule 11 of the Advocates Remuneration Order (reference to a Judge from taxation by the taxing officer)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nyamolo v Kisia (Environment and Land Civil Miscellaneous Application 9 of 2023) [2025] KEELC 7548 (KLR)[2025] KEELC 7548 (KLR)31 Oct 2025applied
Cite this brief
#Cite this brief
Caselaw, "Kenyariri & Associates Advocates v Salama Beach Hotel Ltd & 4 others [2014] KEELC 214 (KLR)", Case Analysis (2014). Miscellaneous Applications Nos. 13, 14, 15, 16, 17, 41 and 42 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/214/eng@2014-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.