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ELRCDismissed· [2018] KEELRC 2245 (KLR)

Shadrack Waigwa Ndung’u & 51 others v Nyeri County Government & 3 others [2018] KEELRC 2245 (KLR)

Employment and Labour Relations Court
14 February 2018
1,321 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that one advocate handling one case for many clients earns instruction fees for that single case, not per client.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nyeri, delivered by Nzioki wa Makau J on 14th February 2018, determined a reference by the Respondents/Applicants challenging a taxing officer's decision of 13th October 2017 on the Claimants' bill of costs dated 9th June 2017. The Applicants contended that the taxing master erred in allowing Kshs. 482,464/- as instruction fees for 52 Claimants instead of Kshs. 75,000/-, arguing that taxation had not followed Schedule 6 paragraph 1(b) of the Advocates Remuneration (Amendment) Order 2014 and that costs should have been disallowed under Rule 77(1). The Claimants/Respondents maintained the instruction fees related to the entire set of Claimants and relied on D. Njogu & Co. Advocates v Panafcom Engineers Ltd, while also complaining that the allowed sum of Kshs. 527,989/- was excessively low and that getting up fees had not been assessed. The court followed the Court of Appeal's decision in Desai, Sarvia & Pallan Advocates v Tausi Assurance Co. Ltd, holding that Rule 62 applies only where an advocate instructed by two or more clients files separate pleadings for each client, not where a unitary claim is filed. Since the 52 Claimants' suit was a single claim resolved by consent on liability and quantum of Kshs. 13,128,180/-, the taxing master's discretion in basing taxation on the decretal sum was neither erroneous nor misguided. The court held that D. Njogu was misapprehended. The reference was dismissed with costs of Kshs. 25,000/- to the Claimants/Respondents' advocates.

Key legal issues

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01

Instruction fees where multiple claimants instruct one advocate in a single suit

Holding

Instruction fees are claimable for the one set of pleadings filed; the taxing master properly based taxation on the decretal sum rather than per-claimant fees

Reasoning

The court adopted the Court of Appeal's holding in Desai, Sarvia & Pallan v Tausi Assurance that Rule 62 applies only where separate pleadings are filed for each client. Since the 52 Claimants filed a unitary claim resolved by consent, the taxing master's discretion in disallowing per-claimant instruction fees and basing taxation on the decretal sum of Kshs. 13,128,180/- was neither erroneous nor misguided.

p. 3
02

The status of D. Njogu & Co. Advocates v Panafcom Engineers Ltd on instruction fees for multiple claimants

Holding

The decision is misapprehended/clarified by the later Court of Appeal decision in Desai, Sarvia & Pallan

Reasoning

Lenaola J. in D. Njogu had held that instruction fees are payable where each of the plaintiffs instructs the advocate. The court held that this position was clarified by the Court of Appeal in Desai, Sarvia & Pallan, and that even where separate pleadings are filed, the taxing officer must still consider whether they were necessary or proper.

p. 3

Legal principles established

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  • Rule 62 of the Advocates Remuneration Order applies only where an advocate instructed by two or more clients files separate pleadings for each client, not where a unitary claim is filed

Court orders

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  1. 1.The application (reference) dated 29th November 2017 is dismissed with costs to the Claimants/Respondents
  2. 2.Costs for defending the taxation reference set at Kshs. 25,000/- payable to the advocates for the Claimants/Respondents

Authorities

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Legislation

  • Advocates Remuneration (Amendment) Order 2014Schedule 6, paragraph 1(b)
  • Advocates (Remuneration) OrderRule 62
  • Advocates Remuneration OrderRule 77(1)

Cases cited (2)

  • Desai, Sarvia & Pallan Advocates v Tausi Assurance Co. Ltd
    [2014] eKLR
  • D. Njogu & Co. Advocates v Panafcom Engineers Ltd
    [2006] eKLR
Jurisdiction invoked
Reference against a taxing officer's ruling under the Advocates Remuneration Order

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, "Shadrack Waigwa Ndung’u & 51 others v Nyeri County Government & 3 others [2018] KEELRC 2245 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2245/eng@2018-02-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.