Wamaasa, Masese, Nyamwange & Co. Advocates v Kenya Power & Lighting Co. Ltd [2021] KEELC 1742 (KLR)
The bottom line
#A Kenyan court slashed a lawyer's KES 54 million bill to KES 179,000, ruling fees must be based on the actual dispute, not inflated project values.
What this practically means
#Executive summary
#Key legal issues
#Whether the taxing master erred in principle in pegging instruction fees on the value of the project stated in a co-defendant's pleading
Yes. The value was never in issue in the suit and could not be ascertained from the pleadings; moreover, the whole aggregated value of three substations was applied although only the Kitale substation was the subject of the suit
The suit was solely for an injunction and compliance with environmental laws; there was no claim for damages. The value cited by the 1st defendant was untested and never ascertained. The taxing master also failed to sever the value of the Kitale substation from the other two substations, amounting to a further error of principle warranting interference with the decision.
Whether the court should remit the bill to a different taxing master or assess the costs itself
The court elected to assess the costs itself as the more expeditious mode of disposal, applying Schedule 6A (j)(i) of the ARO
The court has discretion either to remit for fresh taxation before a different taxing master or to assess the costs itself. Given the summary disposal of the underlying suit and the court's own analysis of the applicable Schedule 6A provisions, it found self-assessment more expeditious and set the instruction fee at Ksh 100,000/= plus 50%, cross-checked against the party and party taxation.
Whether the amount already paid as interim fees should be refunded given the re-taxed global sum
No. The respondents retain the full amount of Ksh 684,800/= already paid, the court treating that payment as voluntary and not contrary to the strictures of the ARO
The re-taxed bill totalled Ksh 179,000/=, far below the amount paid. However, the retainer considerations between the parties were not before the court, and the payment may have been a voluntary contractual sum. The court therefore declined to order a refund while refusing endorsement of the certificate for execution of further amounts.
Legal principles established
#- A court will not interfere with a taxing officer's decision unless it is shown that the decision was based on an error of principle or the fee awarded was so manifestly excessive as to justify an inference of error of principle
- Once instruction fees in party and party costs are ascertained, they become the basis of computation of instruction fees in the advocate and client bill, increased by one half
- Where the value of the subject matter cannot be ascertained from the pleadings, a taxing master errs in principle by relying on a figure merely cited by another party without proof
Court orders
#- 1.The reference is allowed in part: the instruction fee in the advocate/client bill is reassessed at Ksh 150,000/= (Ksh 100,000/= plus a 50% increment) and item 3 at Ksh 24,000/=; items 8, 13, 31 and 42 taxed at Ksh 1,400/= each
- 2.The advocate/client bill of costs is re-taxed at a global sum of Ksh 179,000/=
- 3.The respondents shall retain the full amount of Ksh 684,800/= already paid as their recompense for all services rendered
- 4.The applicant's application dated 17/5/2021 seeking adoption of the Certificate of Costs as a decree is dismissed with costs to the respondent
- Jurisdiction invoked
- Inherent jurisdiction of the High Court/ELC over references against a Taxing Master's decision under the Advocates (Remuneration) Order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wamaasa, Masese, Nyamwange & Co. Advocates v Kenya Power & Lighting Co. Ltd [2021] KEELC 1742 (KLR)", Case Analysis (2021). Not stated in judgment (Reference against Taxing Master's Ruling of 4/5/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1742/eng@2021-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.