Nairobi Water and Sewerage Company Limited v G.M Gamma Advocates LLP (Environment and Land Miscellaneous Application E214 of 2024) [2025] KEELC 1237 (KLR)
The bottom line
#Kenya's High Court overturned a Kshs. 17 million instruction fee award, ruling that advocates cannot charge suit-based instruction fees when no case was ever filed in court.
What this practically means
#Executive summary
#Key legal issues
#Whether the Taxing Master erred in principle in awarding instruction fees of Kshs. 17,000,000 on Item No. 1
The Taxing Master erred in finding the matter contentious when no suit was ever instituted; the award of Kshs. 17,000,000 in instruction fees was made in error and Item No. 1 must be re-taxed before a different Taxing Officer
The court applied the Premchand Raichand principles and the Kipkorir Titoo standard that interference lies only where the Taxing Officer erred in principle. Both parties agreed no suit was filed; the work done was preparatory (legal opinion, searches, draft pleadings). Instruction fees under Schedule 6 presuppose an instituted suit, so treating the matter as contentious and awarding instruction fees of Kshs. 17,000,000 was an error of principle warranting setting aside and remittal.
Whether the Respondent is entitled to fees notwithstanding that no suit was filed
Yes; the Respondent is entitled to reasonable fees for the work actually done, but not the instruction fees awarded
The court found it undisputed that the Applicant engaged the Respondent to prepare a legal opinion on the ELC No. 393 of 2015 judgment and a draft Originating Summons. Relying on Ratemo Oira, an advocate is entitled to fees once instructed and retained. However, entitlement to fees does not validate instruction fees assessed for a contentious suit where no litigation ensued.
Legal principles established
#- A court on a reference will not interfere with the Taxing Officer's discretion unless the Taxing Officer erred in principle in assessing the costs
- An advocate is entitled to payment of reasonable fees commensurate to the work done
Court orders
#- 1.The taxation of the Respondent's Bill of Costs dated October 14, 2024 in reference to Item No. 1 is set aside
- 2.The Advocate-client bill of costs dated October 14, 2024 is remitted for taxation on Item No. 1 to another Taxing Officer
- 3.The Certificate of Taxation dated December 9, 2024 is set aside
- 4.Costs of the application to await the outcome of the taxation
- Jurisdiction invoked
- Reference from the Taxing Master's Ruling on an Advocate-Client Bill of Costs under the Advocates Act and the Advocates (Remuneration) Order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nairobi Water and Sewerage Company Limited v G.M Gamma Advocates LLP (Environment and Land Miscellaneous Application E214 of 2024) [2025] KEELC 1237 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1237/eng@2025-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.