Mukuna & 4 others v Wairia & 6 others (Environment & Land Case 81 of 1999) [2022] KEELC 3473 (KLR)
The bottom line
#Kenya's High Court ruled that a party who changes lawyers can only recover one instruction fee when taxing costs against another party, even if both lawyers were paid.
What this practically means
#Executive summary
#Key legal issues
#Whether the Taxing Master erred in principle in allowing two instruction fees under Rule 62A(1) of the Advocates Remuneration Order
Yes. Only one instruction fee is recoverable in party and party taxation where the defendants changed advocates; the Taxing Master erred in principle and the bill contravened Rule 62A(2).
Rule 62A(1) contemplates a change of advocates with the advocate finally on record drawing a single bill. The Taxing Master correctly applied Rule 62A(1) per Machira & Co. Advocates, but the court held that despite entitlement of a new advocate to instruction fees as between advocate and client, only one instruction fee is recoverable as between the parties. Allowing two instruction fees from two firms breached Rule 62A(2), producing a manifestly excessive bill justifying setting aside the ruling.
Legal principles established
#- On a reference from taxation, a Judge will not normally interfere with the Taxing Officer's discretion unless the Taxing Officer erred in principle in assessing the costs.
- Where defendants changed advocates, only one instruction fee can be recovered in party and party taxation.
- A party who changes advocates may pay instruction fees to each advocate as agreed, but can recover only one instruction fee in a party and party taxation unless there is a judge's certificate for more than one counsel.
Court orders
#- 1.The decision of the learned Taxing Officer to allow and tax items 1 and 2 of the Bill of costs of the 2nd to 7th Respondents dated 28th April 2021 and any consequential orders/certificates arising therein is set aside/vacated, in terms of prayer no. 3 of the Chamber Summons
- 2.No orders as to costs
- Jurisdiction invoked
- Rule 11(2) of the Advocates Remuneration Order and Section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mukuna & 4 others v Wairia & 6 others (Environment & Land Case 81 of 1999) [2022] KEELC 3473 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3473/eng@2022-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.