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ELCAllowedChamber Summons dated 16th July 2020 (Reference from ruling of taxing master dated 6th July 2020 in Advocate-Client Bill of Costs dated 30th September 2019)· [2021] KEELC 962 (KLR)

University of Nairobi v KTK Advocates [2021] KEELC 962 (KLR)

Environment and Land Court
17 November 2021
6,171 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court slashed a law firm's Kshs. 21 million fee award to Kshs. 6 million because the taxing master never anchored it on the statutory minimum.

What this practically means

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Executive summary

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The University of Nairobi (applicant) brought a reference under Rule 11 of the Advocates (Remuneration) Order challenging the taxing master's ruling of 6th July 2020 in which the respondent firm's advocate-client bill of Kshs. 164,268,177.10 was taxed at Kshs. 49,127,929.08, with instruction fees taxed at Kshs. 21,000,000/- and getting up fees at Kshs. 7,000,000/-. The bill related to the firm's defence of the University in consolidated land suits (ELC Suit No. 330 of 2011, Aberdares Engineering Contractors Limited v University of Nairobi, and ELC Suit No. 955 of 2016, EACC v Aberdares) which were settled by consent in January 2019. The applicant argued that the taxing master erred by failing first to establish the basic minimum instruction fee of Kshs. 8,400/- under Schedule VI of the ARO, by taking into account irrelevant factors such as the suit's 8-year pendency and media interest, by failing to give particulars of the factors said to justify the increase, and by making a manifestly excessive award with no nexus to the work done. The respondent defended the award as a judicious exercise of discretion and initially raised a competency objection which it later dropped. The court, Okong'o J, applied the established principles from Nyangito and Joreth, holding that while the taxing master had discretion where the subject matter's value was not ascertainable from the pleadings or settlement, that discretion had to be anchored on the statutory minimum fee. Having failed to do so, the award of Kshs. 21,000,000/- was 'plucked from nowhere' and based on an error of principle. The court elected to tax the items itself rather than remit: instruction fees at Kshs. 6,000,000/- and getting up fees at Kshs. 2,000,000/-, other items remaining as taxed, with each party bearing its own costs of the reference.

Key legal issues

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01

Whether the taxing master erred in principle in awarding Kshs. 21,000,000/- as instruction fees

Holding

Yes - she failed to first ascertain the basic minimum instruction fees of Kshs. 8,400/-, awarded the fee in abstract, did not set out particulars of the factors she relied on, and took into account irrelevant factors (the 8-year pendency and media interest), and the award was manifestly excessive.

Reasoning

The court accepted that where subject matter value is not ascertainable, the taxing master has discretion, but that discretion operates on the ARO minimum fee. Without anchoring the award to the minimum fee, the sum of Kshs. 21,000,000/- was 'plucked from nowhere'. General statements of having considered care, labour and importance without particulars do not disclose a judicial exercise of discretion, and irrelevant factors vitiated the decision.

p. 6
02

Whether the getting up fees award should stand

Holding

The Respondent was entitled to getting up fees, but the taxing master's error lay only in its computation, being a fraction (one third) of the instruction fees.

Reasoning

Since getting up fees are a third of instruction fees, once the instruction fee award was set aside for error of principle the getting up fee necessarily fell with it and had to be recomputed on the reassessed instruction fee.

p. 6
03

Whether to remit the items for re-taxation or tax them in the reference

Holding

The court exercised its discretion to tax the items itself in the interest of justice, given the time the fee dispute had taken and that only two items were contested.

Reasoning

Relying on Kipkorir Titoo & Kiara Advocates and First American Bank of Kenya v Gulab P Shah, the court held remittance would waste judicial time and saddle parties with further costs; the just course was to determine the matter with finality.

p. 6

Legal principles established

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  • Before considering whether to increase the minimum instruction fees, the taxing master must first ascertain the basic minimum instruction fees provided for in the Advocates Remuneration Order; a fee awarded without that ascertainment is awarded in abstract.
  • Where the value of the subject matter cannot be ascertained from the pleadings, judgment or settlement, the taxing officer has a discretion to assess instruction fees taking into account various factors.
  • The time a suit has taken and media interest it generated are irrelevant factors in assessing instruction fees.
  • On a reference, a judge who finds an error of principle may either remit the bill for reassessment or tax it himself where the justice of the case so requires.

Court orders

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  1. 1.The decision of the taxing master made on 6th July 2020 in respect of instruction fees and getting up fees (items 1 and 2) in the bill of costs dated 30th September 2019 is set aside and in place thereof the said items are taxed as follows
  2. 2.Item 1 is taxed at Kshs. 6,000,000/- and a sum of Kshs. 65,020,000/- is taxed off
  3. 3.Item 2 is taxed at Kshs. 2,000,000/- and Kshs. 21,073,333.33/- is taxed off
  4. 4.The other items in the bill shall remain as taxed by the taxing master
  5. 5.Each party shall bear its own costs of the reference
Jurisdiction invoked
Rule 11 of the Advocates (Remuneration) Order - reference from the decision of the taxing master

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, "University of Nairobi v KTK Advocates [2021] KEELC 962 (KLR)", Case Analysis (2021). Chamber Summons dated 16th July 2020 (Reference from ruling of taxing master dated 6th July 2020 in Advocate-Client Bill of Costs dated 30th September 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/962/eng@2021-11-17

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