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ELCAllowedApplication dated 13/3/2015 arising from Advocate-Client Bill of Costs dated 22/4/2014· [2018] KEELC 3048 (KLR)

Mbigi Njuguna & Co. Advocates v Kenya National Highways Authority [2018] KEELC 3048 (KLR)

Environment and Land Court
22 May 2018
KBK. Bor
1,285 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court slashed a Kshs 14.4 million fee award against KeNHA, ruling lawyers must only be paid for work actually done.

What this practically means

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Executive summary

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This ruling determines a reference by Kenya National Highways Authority (Respondent) seeking stay of execution of a certificate of taxation dated 5/12/2014 and setting aside of the taxation of an advocate-client bill of costs filed by Mbigi Njuguna & Company Advocates (Applicant). The taxing officer had awarded the Applicant Kshs. 14,437,884, including Kshs. 8,329,500 for item 3 (instruction fees), computed on the plaintiff's claim of Kshs. 650,000,000 in ELC No. 616 of 2010 (Harp Invesco Limited v NSSF and 3 Others). The Respondent argued the award was excessive and that the taxing officer applied wrong principles, given that the Applicant had ceased acting on 6/11/2013, the suit was still pending, and the Respondent had not been sued but had merely sought joinder to protect its interest in a 50-acre parcel of land. The court reviewed the pleadings filed on the Respondent's behalf, the bill of costs, and the parties' authorities. It found that the taxing officer erred in principle by considering only the claim in the plaint, failing to account for the fact that the Respondent was not a defendant to the suit and that the actual work done did not justify the full instruction fees. The court held the award excessive, set aside the taxation of 1/12/2014, stayed execution of the certificate of taxation, and directed that the bill be taxed afresh before a different taxing officer other than L. M. Wachira. Judgment was delivered at Nairobi on 22 May 2018 by K. Bor, Judge.

Key legal issues

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01

Whether the taxing officer erred in principle in assessing instruction fees on item 3 of the bill

Holding

Yes - the taxing officer considered only the claim in the plaint and failed to take into account that the Respondent was not originally sued but had merely sought to join the suit to protect its interest, and failed to consider the extent of work actually done.

Reasoning

The taxing master taxed item 3 on the plaintiff's claim of Kshs. 650,000,000, awarding Kshs. 8,329,500. The court examined the application to join the Respondent and the defence and counterclaim filed on its behalf, and found the Respondent was never sued as a party but sought joinder to protect its interest in land it managed. Since a different firm took over and the suit remained undetermined, the full instruction fee was disproportionate to the work done, amounting to an error of principle and an excessive award.

p. 2
02

Whether the award of Kshs. 14,437,884 was excessive

Holding

Yes - the amount awarded was excessive in comparison to the work done by the advocates.

Reasoning

Relying on the authorities cited, the court held that an advocate's fees must be reasonable compensation for professional work done and that where an award is manifestly excessive the court will interfere. The instruction fee of Kshs. 8,329,500 for item 3, awarded on the full instruction fee basis despite the advocate ceasing to act mid-suit and the suit remaining pending, was unjustified and out of proportion.

p. 1

Legal principles established

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  • A court may interfere with a taxing officer's decision where the taxing officer erred in principle and the award is excessive in relation to the work done.
  • An advocate's remuneration must be commensurate with, and reasonable compensation for, the professional work actually done.

Court orders

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  1. 1.Stay of execution of the certificate of taxation dated 5/12/2014
  2. 2.Setting aside of the taxation of the Applicant's bill of costs dated 22/4/2014 delivered on 1/12/2014
  3. 3.The bill of costs to be taxed afresh before another taxing officer other than L. M. Wachira

Authorities

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Cases cited (4)

  • Moronge & Company Advocates v Kenya Airport Authority
    [2014] eKLR
  • Muriu Mungai & Co. Advocates v. New Kenya Cooperative Creameries
    [2010] eKLR
  • Akhtar Shahid Butt & Another v David Kinusu Sifuna t/a Sifuna & Co. Advocates
    [2009] eKLR
  • Kipkorir Titoo & Kiara Advocates v Deposit Protection Fund Board
    [2005] KLR 533
Jurisdiction invoked
Original jurisdiction over a reference against a taxing master's decision on an advocate-client bill of costs (Advocates Act remuneration/taxation regime)

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, "Mbigi Njuguna & Co. Advocates v Kenya National Highways Authority [2018] KEELC 3048 (KLR)", Case Analysis (2018). Application dated 13/3/2015 arising from Advocate-Client Bill of Costs dated 22/4/2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3048/eng@2018-05-22

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