Tom Rading Kuyoh v Joshua Nyiera (Sued as Chairman of Fera Association); Nairobi City County Government (Interested Party) [2021] KEELC 2766 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the chamber summons was properly before the judge
It was properly before the judge as a reference under paragraph 11(2) of the Advocates (Remuneration) Order, not a review by the taxing officer.
The application was anchored on paragraph 11(2) of the Advocates (Remuneration) Order and was accompanied by a notice of objection and the Registrar's response giving reasons. Nothing on the face of the application suggested it was made to the taxing officer. The petitioner's reliance on an alleged rule 11A of the Advocates (Practice) Rules failed because the court could not locate such a rule.
Whether instruction fees may be separately charged on a cross-petition
Yes; the taxing officer erred in principle in treating the petition and cross-petition as one suit and disallowing item 7.
A cross-petition is analogous to a counter-claim and, though sharing the same cause number, is a distinct suit. Instructions to defend a petition are not the same as instructions to lodge and prosecute a cross-petition; the advocate receives two sets of instructions on two separate suits. The taxing officer was therefore wrong to disallow the item on the ground that instruction fees is earned once.
Whether getting up fees were awardable where the matter was disposed of by affidavit evidence and written submissions
Yes; the taxing officer erred in principle in declining item 18.
The parties elected to prosecute the petition through affidavit evidence, written submissions and, if necessary, oral highlighting. That constitutes a proper trial within Kenya's legal system. It was a misapprehension of the tenor and meaning of 'trial' to hold that no getting up occurred merely because no viva voce evidence was taken.
Legal principles established
#- A cross-petition or counter-claim is a separate and distinct suit for purposes of taxation; instructions to prosecute or defend a petition and a cross-petition attract separate instruction fees.
- Getting up fees are awardable regardless of whether the trial proceeds by viva voce evidence or by affidavit evidence and written submissions.
- A taxing officer's decision will not be interfered with unless based on an error of principle or a fee so manifestly excessive or low as to infer error of principle.
Court orders
#- 1.The reference is allowed
- 2.The taxing officer's decision on item 7 and item 18 only is set aside
- 3.The bill of costs is remitted back to the taxing officer to assess fees on the two items
- 4.The other items will remain as taxed
- Jurisdiction invoked
- Paragraph 11(2) of the Advocates (Remuneration) Order - reference to a judge against a taxing officer's decision
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.
- Boyambi ((Suing as the Administrator of the Estate of the late TERESIA BOYANI ERENE)) v Ngaira & 2 others (Environment and Land Case E017 of 2024) (Environment and Land) [2026] KEELC 4096 (KLR)[2026] KEELC 4096 (KLR)2 Jul 2026
- Universities Academic Staff Union v Kirinyaga University (Cause 2 of 2022) [2024] KEELRC 2448 (KLR)[2024] KEELRC 2448 (KLR)9 Oct 2024
Cite this brief
#Cite this brief
Caselaw, "Tom Rading Kuyoh v Joshua Nyiera (Sued as Chairman of Fera Association); Nairobi City County Government (Interested Party) [2021] KEELC 2766 (KLR)", Case Analysis (2021). Chamber Summons dated 17/12/2019 (arising from petition and cross-petition dismissed/allowed by judgment of 18/9/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2766/eng@2021-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.