Mwalimu t/a JK Mwalimu & Company Advocates v County Government of Kitui (Miscellaneous Application E018 of 2022) [2024] KEELC 5255 (KLR)
The bottom line
#A Kenyan court doubled a lawyer's fee award after a taxing officer ignored the county government's own offer to pay more.
What this practically means
#Executive summary
#Key legal issues
#Whether the taxation of instruction fees at Kshs 250,000/- was erroneous
Yes - the taxing officer failed to consider the Respondent's counsel's concession of Kshs 500,000/-; instruction fees varied to Kshs 500,000/-
The County Attorney, acting for the Respondent, conceded in submissions that Kshs 500,000/- was reasonable compensation, expressly invoking Schedule 6 Part A item 1(j) of the Advocates Remuneration Order and the Muchiri W'Njuguna guidelines. The taxing officer ignored this concession and relevant factors such as the nature, importance and complexity of the constitutional petition, amounting to an error of principle. The court, being able to assess the correct fee itself, substituted Kshs 500,000/- rather than remitting.
Whether attendance fees of Kshs 2,100 should be increased
No - the court declined to interfere with the taxing officer's discretion
The applicant failed to indicate in the Bill of Costs the amount of time spent in court for each attendance, leaving the taxing officer to allocate time. Absent demonstration of an error of principle, the court would not disturb the exercise of discretion on quantum.
Whether travelling expenses were wrongly taxed off for want of receipts
No - travelling expenses are actual costs which must be proven by receipts
Following Duke O. Omwenga and Ngatia & Associates, disbursements and travelling expenses must be proved by production of receipts. None were provided, so the items were properly taxed off. Further, the record did not clearly show when the suit was transferred to Machakos and Nairobi.
Legal principles established
#- A court interferes with a taxing officer's decision only where it is based on an error of principle or where the award is manifestly excessive or so low as to amount to an injustice; failure to consider a concession by the opposing party's counsel is such an error
- Travelling expenses are actual costs incurred which must be proven by production of receipts
- Where a taxing officer's decision discloses errors of principle, the normal practice is to remit for reassessment unless the judge can assess the fee; a concession on instruction fees by the party liable should be considered
Court orders
#- 1.The decision of the taxing officer delivered on 29th March 2023 be and is hereby varied and/or reviewed to the extent that item 1 of the Bill of Costs dated 13th December 2022 being instructions fees is taxed at Kshs 500,000/- in place of Kshs 250,000/-
- 2.All other prayers in the application dated 5th May 2023 are hereby dismissed
- 3.Each party shall bear their costs of the application
- On appeal from
- Deputy Registrar (Environment and Land Court, Kitui)
- Taxation of Advocate-Client Bill of Costs dated 13th December 2022
- Jurisdiction invoked
- Reference under Rule 11(1) of the Advocates Remuneration Order; supervisory/review jurisdiction of the High Court-equivalent judge over a taxing officer's decision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwalimu t/a JK Mwalimu & Company Advocates v County Government of Kitui (Miscellaneous Application E018 of 2022) [2024] KEELC 5255 (KLR)", Case Analysis (2024). Chamber Summons dated 5th May 2023 (Reference arising from Kitui ELC Petition No. 5 of 2021 Advocate-Client Bill of Costs dated 13th December 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5255/eng@2024-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.