Addax Kenya Limited v National Environment Management Authority & another [2019] KEELC 3981 (KLR)
The bottom line
#Kenya's Environment and Land Court slashed a lawyer's fee award from over Kshs 17 million to Kshs 3 million, ruling getting up fees need the court's certification.
What this practically means
#Executive summary
#Key legal issues
#Whether the taxing officer erred in principle in assessing instruction fees
Yes. Having correctly found that the value of the subject matter could not be ascertained, she failed to use the correct schedule (Schedule VI (1)(m), basic fee Kshs. 6,300/-) as the basis of her assessment, gave no basis for the award, and the Kshs. 7,000,000/- award was manifestly excessive.
The Remuneration Order contains provisions for appeals in Schedules VI(1)(b) and (m). Where the subject value cannot be determined, the basic fee under Schedule VI(1)(m) applies and may be increased judicially. The taxing officer treated the matter as ordinary High Court proceedings without ascertaining the basic fee, so it was impossible to see how she arrived at Kshs. 7,000,000/- in a case she herself described as requiring no more than ordinary skill.
Whether the appeals arose from a public law claim so as to attract Schedule 6(1)(j)
No. The dispute was private in nature; the 2nd respondent objected to the EIA licence to protect its own business, not to vindicate public interest.
Schedule VI(1)(j) covers prerogative orders, none of which were sought. The 2nd respondent's letter of 21st May, 2012 showed it opposed the project because of risk of harm to its own business. Public interest litigation is aimed at genuine public wrongs, not personal gain, and the proceedings here had no public interest flavour.
Whether getting up fees could be awarded without certification by the court
No. Under Schedule VI paragraph 3 of the Remuneration Order, the court must certify at the conclusion of the hearing that the appeal is a proper one for consideration of a getting up fee; absent certification the award was an error and must be taxed off entirely.
The Remuneration Order expressly requires both appearance at the hearing and certification by the court. The appeals proceeded to full hearing, but lack of certification meant the taxing officer had no power to consider getting up fees. The court adopted the Dickson Maina Kibira decision and set aside the entire Kshs. 8,802,315/- award.
Whether to remit the items for re-taxation or tax the bill in the reference
The court exercised its discretion to tax the bill itself, awarding Kshs. 3,000,000/- as instruction fees, having regard to the pendency of the reference and that only two items were contested.
Following Kipkorir Titoo & Kiara Advocates and First American Bank, although the general practice on an error of principle is remittal, the judge has discretion to deal with the matter himself where justice requires. Remittal would waste judicial time and saddle parties with unnecessary costs.
Legal principles established
#- A court on reference may interfere with a taxing officer's decision only where an error of principle is shown or the fee awarded is manifestly excessive as to justify an inference that it was based on an error of principle.
- Where the value of the subject matter is not ascertainable from the pleadings, judgment or settlement, the taxing officer may use discretion to assess a just instruction fee taking into account the nature and importance of the cause, the interest of the parties, the general conduct of the proceedings and other relevant circumstances.
- A taxing officer cannot allow getting up fees on appeal without certification by the court that the case is a proper one for consideration of a getting up fee.
Court orders
#- 1.The decision of the taxing officer dated 30th March, 2016 is set aside with respect to instruction and getting up fees.
- 2.Instruction fees claimed in the sum of Kshs. 17,604,630.11 under item 1 of the bill of costs dated 22nd December, 2014 is taxed at Kshs. 3,000,000/-. A sum of Kshs. 14,604,630.11 is taxed off.
- 3.A sum of Kshs. 8,802,315/- claimed as getting up fees for the appeal under item 17 of the bill of costs is taxed off in its entirety.
- 4.Each party shall bear its own costs of the reference.
- Jurisdiction invoked
- Reference from a taxing officer's decision under the Advocates Remuneration Order (court on reference challenging taxation)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Eric Bett & another v County Assembly of Kericho & another; Samy Kimutai Rono & another (Interested Parties) [2021] KEELRC 159 (KLR)[2021] KEELRC 159 (KLR)16 Dec 2021
- Okoth and Company Advocates v Mount Kenya University [2021] KEELC 1147 (KLR)[2021] KEELC 1147 (KLR)3 Nov 2021
Cite this brief
#Cite this brief
Caselaw, "Addax Kenya Limited v National Environment Management Authority & another [2019] KEELC 3981 (KLR)", Case Analysis (2019). Not stated in the judgment (Chamber Summons dated 14th July, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3981/eng@2019-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.