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ELCPartially Allowed· [2022] KEELC 3473 (KLR)

Mukuna & 4 others v Wairia & 6 others (Environment & Land Case 81 of 1999) [2022] KEELC 3473 (KLR)

High Court of Kenya
28 July 2022
1,990 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This was a reference under Rule 11(2) of the Advocates Remuneration Order by the Plaintiffs, challenging the Taxing Master's ruling of 20th January 2022 in which two separate party and party bills of costs were taxed: the 1st Defendant's bill (Mwaniki Gachoka & Co. Advocates) at Ksh.1,777,490 and the 2nd to 7th Defendants' bill (Kwengu & Company Advocates) at Ksh.1,607,150. All seven defendants had been represented by one firm from inception until a Notice of Change introduced a second advocate near the end of the hearing. The Plaintiffs argued that allowing instruction and getting up fees in both bills amounted to double charging contrary to Rules 62 and 62A(2). The 1st Defendant opposed, submitting that interference with a taxing officer's decision requires an error in principle or exceptional circumstances. The court, guided by Kipkorir, Tito & Kiara, held that while the Taxing Master correctly applied Rule 62A(1) (as explained in Machira & Co. Advocates), she nonetheless erred in principle by allowing two instruction fees, since only one instruction fee is recoverable in party and party taxation where the party changed advocates, per Kenya Tea Development Agency Ltd v J.M. Njenga. The two-fee taxation also contravened Rule 62A(2), producing a manifestly excessive bill. The court allowed the reference in terms of prayer 3 of the Chamber Summons, setting aside the taxation of items 1 and 2 of the 2nd to 7th Defendants' bill dated 28th April 2021 and consequential certificates, and made no orders as to costs.

Key legal issues

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01

Whether the Taxing Master erred in principle in allowing two instruction fees under Rule 62A(1) of the Advocates Remuneration Order

Holding

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).

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.No orders as to costs

Authorities

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Legislation

  • Advocates Remuneration OrderRule 11(2)
  • Advocates Remuneration OrderRule 62
  • Advocates Remuneration OrderRule 62A(1), (2), (3)
  • Civil Procedure RulesSection 3A

Cases cited (7)

  • Desai Sarvia & Pallan Advocates v Tausi Assurance Company Limited
    [2015] eKLR
  • Nyamogo v Nyamogo Advocates v Kenya Bus Services & Another
    [2006] eKLR
  • Lubellah & Associates Advocates v N.K Brothers Limited
    [2014] eKLR
  • Premcahnd Raichand Ltd & Another v Quarry Services of East Africa Limited and another
    [1972] E.A.
  • Kipkorir, Tito & Kiara Advocates v Deposit Protection Fund Board
    [2005] eKLR
  • Machira & Co. Advocates v Arthur K. Magugu & another
    [2012] eKLR
  • Kenya Tea Development Agency Ltd V J. M. Njenga & Co. Advocates
    [2008] eKLR
Jurisdiction invoked
Rule 11(2) of the Advocates Remuneration Order and Section 3A of the Civil Procedure Act

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, "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.