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ELCPartially AllowedKitale ELC No. 7 of 2018 (Reference dated 15/10/2020)· [2021] KEELC 4508 (KLR)

Eldoret Express Limited v Martin Nyongesa & 2 others [2021] KEELC 4508 (KLR)

Environment and Land Court
2 February 2021
4,017 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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By a reference dated 15/10/2020 under Rule 11(2) of the Advocates Remuneration Order, Eldoret Express Limited sought to set aside in entirety a taxation ruling delivered on 30/9/2020 by Hon. Lubia in Kitale ELC No. 7 of 2018, contending the taxing master awarded inflated party-and-party costs (approximately Kshs. 2 million instruction fee per respondent) despite the suit having been disposed of at a preliminary stage and the subject-matter value being unascertainable. The respondents opposed, raising preliminary objections that the reference was filed out of time and without notice to the taxing master as required by rules 11(1) and (2). The court held that where the taxing master's ruling itself contains reasons, no request for reasons is necessary, and the 14-day periods in rules 11(1) and (2) run cumulatively (28 days); the reference was therefore competent and the preliminary objection dismissed. On the merits, the court found the taxing master correctly declined to rely on subject-matter value, but the Kshs. 2,000,000/- instruction fee per respondent lacked proper justification against the Schedule 6 paragraph 1(j) minimum of Kshs. 75,000/- for a defended suit not proceeding to hearing, and was so high as to amount to an injustice. The court taxed the bills itself, setting aside the taxation partially and substituting Kshs. 100,000/- instruction fee for each respondent, leaving other items unaltered. The 3rd respondent's application dated 4/11/2020 was dismissed with costs. Parties were to bear their own costs of the reference.

Key legal issues

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01

Competency of the reference for non-compliance with rule 11(1) and (2) of the Advocates Remuneration Order

Holding

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

Reasoning

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.

p. 3
02

Whether the instruction fee of Kshs. 2,000,000/- per respondent was excessive

Holding

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

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The 3rd respondent's notice of preliminary objection dated 5/11/2020 is dismissed
  2. 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. 3.The instruction fee awarded to each respondent is vacated and substituted with Kshs. 100,000/- for each of the three respondents
  4. 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. 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. 6.The 3rd respondent's application dated 4/11/2020 is dismissed with costs to Eldoret Express Limited
  7. 7.The parties shall bear their own costs of the instant application

Authorities

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Legislation

  • Advocates Remuneration OrderRule 11(1), 11(2); Schedule 6 paragraph 1(j)
  • Constitution of KenyaArticle 159; Article 10

Cases cited (9)

  • County Assembly Of Kisumu & 2 Others Vs Kisumu County Assembly Service Board & 6 Others
    [2015] eKLR
  • The Speaker of The National Assembly Vs James Njenga Karume
    Civil Application No. Nai 92 of 1992
  • Waiganjo Wachira & Co. Advocates Vs Pacis Insurance Company Ltd
    [2020] eKLR
  • Ufundi Cooperative Savings and Credit Society Vs Njeri Onyango & Co Advocates
    [2015] eKLR
  • Moses Mwicigi & 14 Others Vs Independent Electoral and Boundaries Commission & 5 Others
    [2016] eKLR
  • Muri Mwaniki & Wamiti Advocates Vs African Banking Corporation Ltd
    [2020] eKLR
  • Ahmednassir Vs National Bank of Kenya Ltd
    2006 EA
  • Evans Thiga Gaturu vs Kenya Commercial Bank Ltd
    [2012] eKLR
  • R. Billing & Co. Advocates vs Kundan Singh Construction Ltd
    2002 eKLR
Jurisdiction invoked
Rule 11(2) of the Advocates Remuneration Order

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, "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.