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ELRCPartially AllowedAdvocate/Client Bill of Costs dated March 12, 2020; Notice of Motion dated December 7, 2020; Chamber Summons (Reference) dated November 19, 2021· [2022] KEELRC 834 (KLR)

Mwakio, Kirwa & Company Advocates v County Public Service Board Bome & Joshua Terer (Miscellaneous Cause 1 of 2020) [2022] KEELRC 834 (KLR)

Employment and Labour Relations Court
10 February 2022
OMOnesmus N Makau
4,866 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court cut a lawyer's Ksh 7.3 million fee bill to Ksh 2.38 million, ruling the original instruction fee was excessively high.

What this practically means

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Executive summary

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This ELRC Nakuru ruling by Makau J dealt with two competing applications: the advocate's notice of motion dated December 7, 2020 seeking entry of judgment on certified advocate-client costs of Kshs 7,338,978.96 plus interest at 14% per annum, and the clients' chamber summons (reference) dated November 19, 2021 under paragraph 11 of the Advocates Remuneration Order seeking to set aside the taxing master's ruling of October 14, 2020 and re-assessment of specified items. The clients argued the taxing master ignored their submissions, applied the wrong schedule, and awarded exorbitant instruction fees of Kshs 3,000,000 for an ordinary employment dispute involving about 350 claimants, plus unwarranted getting up fees where the suit was decided on written submissions, and unproved disbursements. The advocate maintained the taxing master committed no error of principle and that judgment should follow the certificate. The court applied the settled test that interference requires an error of principle or a fee so manifestly excessive as to imply one. It found the increase of instruction fees from Kshs 75,000 to Kshs 3,000,000 manifestly excessive and unjust, reassessed them at Kshs 1,000,000 rather than remitting for fresh taxation, correspondingly fixed getting up fees at Kshs 333,333.30 and reduced the fee for defending an application from Kshs 50,000 to Kshs 10,000. Perusal, service, disbursement and attendance items were left intact. Total costs were assessed at Kshs 2,383,979.44, and judgment was entered for the advocate for that sum with interest at 14% from the date of the ruling. The clients received the costs of the reference plus VAT on professional fees; the advocate received costs of his application.

Key legal issues

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01

Whether the taxing master's award of instruction fees at Kshs 3,000,000 was manifestly excessive

Holding

Yes; the increase from the statutory minimum of Kshs 75,000 to Kshs 3,000,000 was manifestly excessive and unjust, warranting interference and reduction to Kshs 1,000,000.

Reasoning

The taxing master acted within his discretion since the subject matter value was unascertainable, but the resulting figure was so high as to amount to an injustice. The court retained jurisdiction to reassess and, to save time, substituted its own assessment of Kshs 1,000,000 taking into account volume of work, 350 claimants and time spent.

p. 8
02

Whether getting up fees were warranted where the suit was determined by written submissions and not viva voce evidence

Holding

Yes; the suit went to full hearing and it matters not that it was disposed of by written submissions.

Reasoning

The defence contested the claim and directions were taken for disposal by written submissions on the pleadings and evidence filed. That constituted a full hearing, so getting up fees applied; however, the amount had to be recalculated at one third of the reduced instruction fees.

p. 8
03

Whether entry of judgment should issue on the taxed costs

Holding

Judgment entered, but on the court's reassessed sum of Kshs 2,383,979.44 with interest at 14% from the date of the ruling.

Reasoning

Having reduced the instruction fees and the application fee, the certified figure could not stand in full. The court opted not to remit for fresh taxation and instead computed the adjusted total, entering judgment for the advocate for that sum with interest.

p. 9
04

Whether perusal, service, disbursement and attendance items could be disturbed

Holding

No; the taxing master's explanations for those items were adequate and uncontroverted.

Reasoning

The 1750 folios justifying perusal fees were not disputed, and the taxing master had explained how the service, disbursement and attendance figures were computed, so no error of principle or manifest excess was shown.

p. 9

Legal principles established

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  • A court will not interfere with a taxing officer's decision unless it is shown the decision was based on an error of principle or the fee was so manifestly excessive as to justify an inference of error of principle.
  • Where the value of the subject matter is not ascertainable, the taxing officer may exercise discretion to assess a just instruction fee considering the nature and importance of the cause and all relevant circumstances.
  • Once costs are taxed and a certificate issued without a successful reference, the court need only enter judgment on the certificate.

Court orders

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  1. 1.The respondents' chamber summons dated November 19, 2021 is allowed.
  2. 2.Instruction fees reduced from Kshs 3,000,000 to Kshs 1,000,000, which fees will inform the getting up fees and VAT payable.
  3. 3.Getting up fees fixed at one third of Kshs 1,000,000, equalling Kshs 333,333.30.
  4. 4.The fee for defending an application reduced from Kshs 50,000 to Kshs 10,000.
  5. 5.Other items remain as taxed: disbursements of Kshs 1,445 and other costs for professional services taxed at Kshs 251,689.66.
  6. 6.Total costs under Part A of the Order is Kshs 1,585,022.96, to be increased by 50%.
  7. 7.Total costs assessed at Kshs 2,382,534.44 plus disbursements of Kshs 1,445 = Kshs 2,383,979.44.
  8. 8.The clients to have costs of the reference plus VAT on the professional fees.
  9. 9.Judgment entered for the advocate against the respondents in the sum of Kshs 2,383,979.44, attracting interest at 14% per annum from the date of the ruling.
  10. 10.The advocate awarded costs of the application dated 7.12.2020.

Authorities

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Legislation

  • Advocates Actsection 51(2)
  • Advocates Remuneration Orderrule 7; paragraph 7; paragraph 11(1) & (2); Schedule 6 paragraph 2; Schedule 6 paragraph C(viii); Schedule 6A(1)
  • Employment and Labour Relations Court Actsection 12
  • Employment and Labour Relations Court (Procedure) Rulesrules 17, 28(3), 33, 38
  • Civil Procedure Actsections 3 & 3A
  • Constitution of Kenyaarticle 159
  • Advocates (Remuneration)(Amendment) Order 2014Schedule VIB

Cases cited (14)

  • Lubellah & Associates Advocates v N K Brothers Limited
    [2014] eKLR
  • Owino Okeyo and Co Advocates v Mike Maina and Mureithi Investments Co Limited
  • Plaza Limited v National Bank of Kenya Limited
    [2015] eKLR
  • Kenya Human Rights Commission v Attorney General & another
    [2018] eKLR
  • Joreth Limited v Kigano and Associates
    (2000) EA 92; NRB CA Civil Appeal No 66 of 1999 [2002] eKLR
  • Arthur v Nyeri Electrical Undertaking
    [1962] EA 497
  • Premchand Raichand Ltd & another v Quarry Services of East Africa Limited and another
    (1972) EA 162
  • AM Kimani & Co Advocates v Kenindia Assurance Co Limited
    [2010] eKLR
  • Republic v Commissioner of Domestic Taxes Ex parte Ukwala Supermarket Limited & 2 others
    [2018] eKLR
  • Republic v Minister for Agriculture & 2 others ex parte Samuel Muchiri W'Njuguna
    [2006] eKLR
  • Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board
    NRB CA Civil Appeal No 220 of 2004 [2005] eKLR
  • First American Bank of Kenya v Shah and others
    [2002] 1 EA 64 at 69
  • James Wangalwa & another v Agnes Naliaka Cheseto
    High Court Misc App No 42 of 2012 KLR
  • Machira t/a Machira & Co Advocates v East African Standard (No 2)
    (2002) KLR 63
Jurisdiction invoked
Section 51(2) of the Advocates Act; paragraph 11 of the Advocates Remuneration Order; section 12 of the Employment and Labour Relations Court Act; sections 3 & 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mwakio, Kirwa & Company Advocates v County Public Service Board Bome & Joshua Terer (Miscellaneous Cause 1 of 2020) [2022] KEELRC 834 (KLR)", Case Analysis (2022). Advocate/Client Bill of Costs dated March 12, 2020; Notice of Motion dated December 7, 2020; Chamber Summons (Reference) dated November 19, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/834/eng@2022-02-10

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