Eldoret Express Limited v Martin Nyongesa & 2 others [2021] KEELC 4508 (KLR)
The bottom line
#A Kenyan court slashed a Kshs 2 million legal fee to Kshs 100,000, ruling lawyers' costs must be justified and proportional, not inflated.
What this practically means
#Executive summary
#Key legal issues
#Competency of the reference for non-compliance with rule 11(1) and (2) of the Advocates Remuneration Order
The reference was competent; where reasons are contained in the ruling, no notice seeking reasons is needed and the 28 days under rules 11(1) and (2) run cumulatively
Rule 11(1) requires notice of objection but not a request for reasons; rule 11(2) obliges the taxing master to give reasons. Where the ruling itself contains reasons, seeking them would be ritualistic. Treating non-seeking of reasons as fatal while self-seeking objectors gain extra days would be discriminatory; the reference lodged within 28 days was in time and the court had jurisdiction.
Whether the instruction fee of Kshs. 2,000,000/- per respondent was excessive
Yes; the suit was for injunctive and declaratory relief, so the baseline was Kshs. 75,000/- under Schedule 6 paragraph 1(j), and the award of twenty times that amount, without justification, was so high as to amount to an injustice
The taxing master correctly declined to rely on subject-matter value but awarded Kshs. 2,000,000/- per respondent without proper justification against the Schedule 6 paragraph 1(j) minimum of Kshs. 75,000/- for a defended suit. The court substituted Kshs. 100,000/- (basic fee plus one-third for complexity), upholding rejection of a getting-up fee since the suit did not proceed to hearing.
Legal principles established
#- A judge does not interfere with a taxing officer's assessment of a reasonable fee save where the award is so high or so low as to amount to an injustice
- Where reasons for a taxation are already contained in the ruling, there is no need to seek reasons from the taxing master before filing a reference under rule 11
Court orders
#- 1.The 3rd respondent's notice of preliminary objection dated 5/11/2020 is dismissed
- 2.The taxing master's decision in her ruling dated 30th September 2020 is vacated and set aside partially only in so far as the instruction fee is concerned
- 3.The instruction fee awarded to each respondent is vacated and substituted with Kshs. 100,000/- for each of the three respondents
- 4.1st Defendant's Bill of Costs re-taxed at Kshs. 144,200/-; 2nd Defendant's Bill at Kshs. 139,475/-; 3rd Defendant's Bill at Kshs. 118,200/-
- 5.The taxing master's award on the rest of the items other than the instruction fee in all 3 bills of costs remains unaltered
- 6.The 3rd respondent's application dated 4/11/2020 is dismissed with costs to Eldoret Express Limited
- 7.The parties shall bear their own costs of the instant application
- Jurisdiction invoked
- Rule 11(2) of the Advocates Remuneration Order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eldoret Express Limited v Martin Nyongesa & 2 others [2021] KEELC 4508 (KLR)", Case Analysis (2021). Kitale ELC No. 7 of 2018 (Reference dated 15/10/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4508/eng@2021-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.