Robert Mutai & 135 others v Public Service Board Elgeyo Marakwet & 3 others [2021] KEELRC 2368 (KLR)
The bottom line
#Kenya's Employment Court confirmed that a lawyer can charge separate instruction fees for claimants added to a case by amendment, and dismissed the employer's challenge.
What this practically means
#Executive summary
#Key legal issues
#Whether an advocate is entitled to separate instruction fees from claimants added by amendment
Yes. Adding parties by amendment serves the same purpose as consolidation; the additional claimants would have paid instruction fees had they filed separate suits, so the advocate is not disentitled.
The court accepted the Ochieng, Onyango, Kibet and Ohaga principle that receiving separate instructions from different clients executed through single pleadings does not make the instructions one. Amendment adding parties is a case-management tool akin to consolidation. Treating the static nature of instruction fees as barring fees from added claimants would encourage joyriders joining litigation without paying instruction fees.
Whether the taxing officer erred in finding the matter complex and voluminous absent a complexity certificate from the trial court
No. No authority was cited requiring the trial court to certify a matter complex, and the taxing officer's reasons were cogent.
The applicant did not seriously contest that the pleadings were voluminous; the volume arose from 282 claimants added by amendment. No authority enjoins a trial court to certify complexity on conclusion. The taxing officer had perused the entire record, identified complexity, volume, time and resources, and her observations justified the award on instruction fees.
Whether the reference offended rule 11 of the Advocates Remuneration Order
Not fatal; the applicant relied on article 159 of the Constitution against technicality, and the court determined the reference on the merits.
The claimant argued the application was filed outside the 14-day period without leave and was incompetent. The applicant submitted that the taxing officer gave reasons on every item, so the requisite notice under rule 11 was unnecessary, relying on Murei Mwaniki and Wamuti Advocates and Evans Thiga Gaturu. The court did not strike out the application but dismissed the reference on the merits.
Legal principles established
#- Instruction fee is an independent and static item, charged once only, and not affected by the stage the suit has reached; but where an amendment adds more claimants on the same facts, the advocate is entitled to instruction fees from the additional parties.
- A court may interfere with a taxing officer's decision only where it is shown the decision was based on an error of principle or the fee awarded was manifestly excessive so as to justify an inference of error of principle.
Court orders
#- 1.The reference is dismissed with costs
- 2.It is so ordered
- Jurisdiction invoked
- Reference against a taxing officer's decision under rule 11 of the Advocates Remuneration Order; supervisory jurisdiction over the Deputy Registrar's taxation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Robert Mutai & 135 others v Public Service Board Elgeyo Marakwet & 3 others [2021] KEELRC 2368 (KLR)", Case Analysis (2021). Chamber Summons dated 7th April, 2021 (reference from taxation in Claimant's bill of costs dated 29th October, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2368/eng@2021-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.