Thomas K’Bahati T/A K’Bahati & Co. Advocates v Janendra Raichand Shah [2020] KEELC 1562 (KLR)
The bottom line
#A Kenyan court confirmed that advocates who take over a case midway cannot claim full instruction fees—only payment for the work they actually did.
What this practically means
#Executive summary
#Key legal issues
#Whether the reference was defective for citing a wrong Taxing Master and wrong date
No - the error was a procedural technicality; the bill in dispute was clearly identified
The respondent argued the reference was incompetent because it referenced a decision by a different taxing officer and a wrong date. The court held, invoking Article 159(2)(d) and the definition of procedural technicalities in Kenya Ports Authority v Kenya Power, that where the Bill of Costs in dispute (dated 23rd January 2017) is clear, such misdescription is a mere technicality that cannot found dismissal of the reference.
Whether the respondent advocate was entitled to full instruction fees
No - the respondent only came on record on 28th January 2015 and did not draw the plaint, so only work done from that date is chargeable
The court adopted the principle from Kenyari & Associates v Salama Beach Hotel and First American Bank v Shah that full instruction fees are earned by the advocate who institutes or defends the suit. Since K'Bahati & Company Advocates took over by Notice of Change dated 26th January 2015 (filed 28th January 2015), the respondent could not claim full instruction fees computed from 2011, but only for work done from 28th January 2015 onwards.
The principles on which a court interferes with a taxing officer's decision
Interference lies where there is an error of principle or the fee is manifestly excessive; the normal practice is remittal to another taxing officer for reassessment
The court restated the First American Bank of Kenya v Shah principles: interference requires an error of principle or manifest excess; relevant factors include the nature and importance of the matter, value of the subject matter, interests of parties, conduct of proceedings and directions of the trial judge; on errors of principle the normal course is remittal unless the error could not materially have affected the assessment.
Legal principles established
#- Instruction fees are only payable to an advocate in respect of work done; the advocate who draws the plaint is entitled to the full instruction fees, and subsequent advocates can only be paid for actual work done
- Misnaming the taxing officer or citing a wrong date where the bill in dispute is clear is a procedural technicality that cannot justify dismissal, per Article 159(2)(d)
Court orders
#- 1.The reference against the decision on taxation is allowed
- 2.The Bill of Costs dated 23rd January 2017 is remitted for taxation before any other Deputy Registrar to tax item 1 of the said bill in accordance with the Advocates Remuneration Order, taking into account the guidelines set out in the said Order
- 3.Each party to bear their own costs
- On appeal from
- Deputy Registrar (Taxing Master - D. Wasike)
- Ruling on taxation of Bill of Costs dated 23rd January 2017
- Jurisdiction invoked
- Rule 11(1) and (2) of the Advocates Remuneration Order (reference against taxation decision); Article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thomas K’Bahati T/A K’Bahati & Co. Advocates v Janendra Raichand Shah [2020] KEELC 1562 (KLR)", Case Analysis (2020). Chamber Summons dated 1st October 2018 (arising from Bill of Costs dated 23rd January 2017; underlying suit Civil Case No. 233 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1562/eng@2020-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.