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ELCAllowedChamber Summons dated 17/12/2019 (arising from petition and cross-petition dismissed/allowed by judgment of 18/9/2018)· [2021] KEELC 2766 (KLR)

Tom Rading Kuyoh v Joshua Nyiera (Sued as Chairman of Fera Association); Nairobi City County Government (Interested Party) [2021] KEELC 2766 (KLR)

Environment and Land Court
24 June 2021
2,392 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Following a judgment of 18/9/2018 dismissing Tom Rading Kuyoh's petition and allowing Joshua Nyiera's cross-petition with costs, the respondent filed a party and party bill of costs taxed on 26/11/2019 at Kshs 208,108. The taxing officer (Hon I N Barasa) disallowed instruction fees on the cross-petition (Item 7), holding that instruction fees is earned once per Joreth Limited v Kigano & Associates, and disallowed getting up fees (Item 18) because the petition was determined by affidavit evidence and written submissions. The respondent filed a reference under paragraph 11(2) of the Advocates (Remuneration) Order. The petitioner opposed, arguing the reference offended rule 11A of the Advocates (Practice) Rules, was an abuse of process, and invited the taxing officer to sit on appeal over her own decision. Eboso J framed three issues. First, the chamber summons was properly before a judge as a reference under paragraph 11(2); the court could not locate the alleged rule 11A. Second, a cross-petition is a separate and distinct suit analogous to a counter-claim, so instructions to defend a petition cannot be equated with instructions to lodge and prosecute a cross-petition; the taxing officer erred in principle in disallowing Item 7. Third, a trial conducted by affidavit evidence and written submissions is still a trial; the taxing officer misapprehended the meaning of 'trial' in declining getting up fees. The court allowed the reference, set aside the taxing officer's decision on items 7 and 18 only, and remitted the bill for reassessment of those two items, with the other items remaining as taxed.

Key legal issues

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01

Whether the chamber summons was properly before the judge

Holding

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.

Reasoning

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.

p. 2
02

Whether instruction fees may be separately charged on a cross-petition

Holding

Yes; the taxing officer erred in principle in treating the petition and cross-petition as one suit and disallowing item 7.

Reasoning

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.

p. 2
03

Whether getting up fees were awardable where the matter was disposed of by affidavit evidence and written submissions

Holding

Yes; the taxing officer erred in principle in declining item 18.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The reference is allowed
  2. 2.The taxing officer's decision on item 7 and item 18 only is set aside
  3. 3.The bill of costs is remitted back to the taxing officer to assess fees on the two items
  4. 4.The other items will remain as taxed

Authorities

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Legislation

  • Advocates (Remuneration) OrderParagraph 11(2)
  • Advocates (Remuneration) OrderParagraph 2 of Schedule 6
  • Advocates (Practice) RulesRule 11A (as alleged by petitioner; rule not located by the court)

Cases cited (8)

  • Joreth Limited v Kigano & Associates
  • Kagwimi Kang’ethe & Co Advocates v Nairobi Mamba Village Limited
  • Amon Bobbet [1889] 22 QBD 543
    [1889] 22 QBD 543
  • Odera Obar & Co Advocates v U Design & 2 others; Nairobi HC Misc Application No 392 of 2015
    Nairobi HC Misc Application No 392 of 2015
  • Nyeri County Government v Central Kenya Coffee Mill Ltd, ELC Judicial Review Application No 8 of 2014 (Nyeri)
    ELC Judicial Review Application No 8 of 2014
  • First American Bank of Kenya v Shah & Others [2002] 1 EA 65
    [2002] 1 EA 65
  • Premchard Rainchard Ltd & Another v Quarry Services of East Africa Ltd & Another
  • Republic v Ministry of Agriculture & 2 others: Ex-parte Muchiri W'Njuguna & Others [2006] eKLR
    [2006] eKLR
Jurisdiction invoked
Paragraph 11(2) of the Advocates (Remuneration) Order - reference to a judge against a taxing officer's decision

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.