Republic v Export Processing Authority; London Distillers (K) Ltd (Exparte Applicant) (Environment and Land Miscellaneous Application 48 of 2019) [2024] KEELC 3595 (KLR)
The bottom line
#A Kenyan court refused to award enhanced Senior Counsel fees because certification was sought too late, after the case had already been settled.
What this practically means
#Executive summary
#Key legal issues
#Timing and jurisdiction for certification of Senior Counsel costs
Certification must be given by the Judge at the trial or on delivery of judgment, or be provided for in the parties' consent; it cannot be sought for the first time at taxation, and the Judge is functus officio on the question
Paragraph 60 of the Advocates Remuneration Order requires the Judge to certify under his or her hand at trial or on delivery of judgment. Schedule 6(1)(iii) presupposes a certificate already given by the time of taxation. Where the matter was settled by consent and the consent was silent on certification, neither party nor the taxing officer may seek directions on certification afterwards, as that would be moving the Judge after the fact.
Whether the settled dispute justified employment of Senior Counsel
Even setting aside functus officio, the judicial review, contempt and stay applications were simple, ordinary and non-novel, and did not reasonably and properly require Senior Counsel
The dispute concerned suspension of an effluent discharge permit and was resolved by consent; the issues are ones courts routinely handle, no complexity, novelty or difficulty was specified, the document volumes were ordinary, and interpretation of Regulation 12 of the Water Quality Regulations - in force and applied for over a decade and a half - does not of itself create complexity requiring Senior Counsel.
Legal principles established
#- Certification for costs of Senior Counsel is a matter for the Judge's discretion, exercised only where it was reasonable and proper to employ Senior Counsel, having regard to the amount recovered or paid, and the nature, importance, difficulty or complexity of the case
- Where a party invokes complexity to justify instructing Senior Counsel, the complexity must be specifically demonstrated
- The costs of instructing Senior Counsel of a party's own choice ordinarily fall on the instructing party absent reasonable and proper justification
Court orders
#- 1.The court declined to certify for costs of Senior Counsel, holding that it is functus officio on that question
- 2.Each party to bear its own costs of the determination
- Jurisdiction invoked
- Advocates Act and the Advocates Remuneration Order 2014 (Paragraph 60 and Schedule 6(1)(iii)) on certification by the Judge of costs of Senior Counsel
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Export Processing Authority; London Distillers (K) Ltd (Exparte Applicant) (Environment and Land Miscellaneous Application 48 of 2019) [2024] KEELC 3595 (KLR)", Case Analysis (2024). Not stated on the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3595/eng@2024-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.