Tom Ojienda & Associates v Nairobi City County [2021] KEELRC 1227 (KLR)
The bottom line
#Nairobi's Employment Court threw out a Taxing Master's tiny fee award, ruling lawyers can bill based on a case's true monetary value.
What this practically means
#Executive summary
#Key legal issues
#Whether the value of the subject matter was knowable
Yes - the value was disclosed in the Pleadings, the verifying Affidavit and the Certificate of Urgency; the dispute was an economic dispute about implementing a CBA of known value (Kshs. 10.4 billion).
Schedule V1 of the Advocates Remuneration Order permits value to be read from Pleadings, Judgment or Settlement. There was no Judgment or Settlement, so the Pleadings had to be examined. The figures of annual revenue (Kshs. 5.4 billion) and cost of implementing the CBA (Kshs. 10.4 billion) appeared in the Amended Statement of Claim and Certificate of Urgency, verified by affidavit. Rule 14(4) of the E&LRC Procedure Rules allows pleadings to contain evidence verified by affidavit, so the affidavit figures could be relied on. The strike was only a tool in a wider economic dispute over CBA implementation.
Whether the Taxing Master assessed instructions fees properly and in accordance with the law
No - taxation was flawed: she failed to apply the value of the subject matter and gave inadequate weight to the complexity of the brief.
Having found the subject matter value knowable, taxation based on an unquantified subject matter could not stand. Further, the brief involved a complex constitutional transitional dispute engaging the 6th Schedule, devolution, the Labour Relations Act and a registered CBA - not a simple strike dispute. The absence of a Statement of Response and hearing did not justify low fees, since instructions fees are static and independent; undefended-cause clauses would have applied.
Whether the Court should remit the Bill for fresh taxation or tax it itself
The Bill should be remitted to a different Taxing Master for fresh taxation; the Judge on reference should not tax the Bill himself.
Taxation is the function of the Taxing Master. Once a reference finds taxation flawed, the proper course is remittal with the Judge's ruling offering guidance on re-taxation, allowing the process to revert to where it started.
Legal principles established
#- The value of the subject matter for taxation may be manifested from the Pleadings, from the Judgment, or from a Settlement between the Parties.
- Instructions fees are an independent and static item charged once only, unaffected by the stage the suit reached.
- On a reference, once taxation is found flawed, the Bill should be remitted to the Taxing Master rather than the Judge making his own award.
Court orders
#- 1.The Ruling of Hon. N.M. Kyanya awarding the Advocate Kshs. 448,328 set aside in relation to item No.1
- 2.The Bill of Costs dated 27th September 2017 to be taxed afresh before another Taxing Master
- 3.No order on the costs
- Jurisdiction invoked
- Reference against the Taxing Master's ruling on an Advocate-Client Bill of Costs under the Advocates Remuneration Order; employment and labour relations jurisdiction of the ELRC
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tom Ojienda & Associates v Nairobi City County [2021] KEELRC 1227 (KLR)", Case Analysis (2021). Reference from Taxation of Advocate-Client Bill of Costs (Cause arising from Industrial Court Cause No. 1410 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1227/eng@2021-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.