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ELRCPartially AllowedChamber Summons Application dated 22nd June 2022· [2023] KEELRC 313 (KLR)

National Union of Water & Sewerage Employees v National Water & Sewerage Co. Ltd & another; Kenya County Government Workers Union (Applicant); Leonard K. Mbuvi t/a Katunga Mbuvi & Co. Advocates (Respondent) (Miscellaneous Application E209 of 2021) [2023] KEELRC 313 (KLR)

Employment and Labour Relations Court
13 February 2023
5,800 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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COTU challenged a lawyer's Kshs.5 million fee award; a Kenyan court cut it down, ruling the fees were inflated but not too late to claim.

What this practically means

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Executive summary

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This is a reference under Rule 11(2) of the Advocates Remuneration Order by the Central Organisation of Trade Unions (Kenya) challenging a Taxing Officer's ruling of 14th June 2022 that taxed the Respondent advocate's Bill of Costs at Kshs.8,985,417.42, including instruction fees of Kshs.5,000,000 arising from a judicial review matter. The applicant argued the bill was statute barred under Section 4(1) of the Limitation of Actions Act, that the Taxing Officer lacked jurisdiction, and that several errors of principle were committed, including reliance on a Further Affidavit allegedly 'sneaked' into the record without filing, payment or service, and an unjustified 179-fold enhancement of instruction fees from Kshs.28,000. The court held the bill was not statute barred, finding the applicant estopped under Sections 39(1)(b) and (2) of the Limitation of Actions Act on promissory estoppel principles from Combe v Combe, given its promise to pay and periodic part payments including a Kshs.300,000 cheque. However, the court found two sustainable errors of principle: first, the Taxing Officer relied on a Further Affidavit that was neither filed, paid for, served nor authorised by leave, which prejudiced the applicant's Article 50 right to fair trial; second, the award of the full Kshs.5,000,000 instruction fees without particularising the Part II Schedule V factors was manifestly excessive, particularly since the decision relied upon had been reduced on appeal to Kshs.2,000,000. The court found no error in the alleged overemphasis of the matter's importance or failure to deduct the Kshs.300,000 payment. The court set aside the instruction fee assessment and referred the Bill of Costs to a different Taxing Officer for fresh taxation, with each party bearing its own costs of the reference.

Key legal issues

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01

Whether the Bill of Costs was statute barred

Holding

The Bill of Costs was not statute barred; the applicant was estopped from pleading limitation under Sections 39(1)(b) and (2) of the Limitation of Actions Act, having promised to pay fees which the advocate relied upon to his detriment.

Reasoning

Although time ordinarily runs from delivery of judgment, the applicant gave no evidence of when fees were payable or of payment before judgment. The parties communicated intermittently and the applicant made periodic part payments. Applying the doctrine of promissory estoppel as explained by Denning LJ in Combe v Combe, the applicant who promised to pay could not resile and plead limitation.

p. 7
02

Whether reliance on the Further Affidavit was an error of principle

Holding

Yes. The Further Affidavit dated 4th April 2022 was neither filed, paid for, nor served, and was placed on record without leave the day before the scheduled ruling date; it should have been struck out and ought not to have been relied upon.

Reasoning

Court records showed no Registry stamp or acknowledgement authenticating the Further Affidavit. Physical documents must be presented at the Registry for authentication. Absent evidence of leave, filing and service introducing new evidence requiring rebuttal, reliance on it unfairly prejudiced the applicant's right to a fair hearing under Article 50 of the Constitution, and the Taxing Officer's reliance on it was an error of principle.

p. 8
03

Whether the award of Kshs.5,000,000 instruction fees was an error of principle

Holding

Yes. The award of the full amount prayed for as instruction fees was unsustainable, being 179 times the prescribed minimum, and the Taxing Officer failed to particularise complexity, novelty or unusual labour under Part II of Schedule V of the Advocates Remuneration Order, 2009; the assessment was set aside for fresh taxation.

Reasoning

The court found the 2009 Remuneration Order applicable since the suit was filed and concluded during its currency. The decision relied on by the Taxing Officer (Republic v University of Nairobi) had been reduced on appeal from Kshs.4,000,000 to Kshs.2,000,000, and the Taxing Officer failed to justify the enhancement by reference to the Part II Schedule V factors, warranting the court's intervention.

p. 11
04

Whether the Taxing Officer overemphasized the importance of the matter

Holding

No error of principle. The Taxing Officer considered the importance of the matter alongside time, research, skill and other relevant factors, and the parent file could not be traced to assist the court.

Reasoning

The court noted that the Taxing Officer addressed the attraction of recruits to the profession as in Premchand Raichand, referenced time, research and skill as in Republic v Ministry of Agriculture Ex parte Muchiri Njuguna, and that the unavailability of the parent file circumscribed her leeway. The applicant therefore failed on this head of attack on the taxation.

p. 11

Legal principles established

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  • A court will not interfere with a Taxing Officer's decision unless it is based on an error of principle or the fee awarded is so manifestly excessive as to justify an inference of error of principle.
  • Promissory estoppel under Section 39(1)(b) of the Limitation of Actions Act can bar a client from pleading limitation against an advocate's claim for fees.
  • A document not filed, paid for or served cannot be relied upon in determining a bill of costs; reliance on such a document is an error of principle vitiating the taxation.
  • Taxation of costs is a matter of opinion based on experience, not a mathematical exercise.

Court orders

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  1. 1.The Bill of Costs be referred to another Taxing Officer for fresh taxation of the instruction fees
  2. 2.Each party shall bear its own costs of the Applicant's Chamber Summons dated 22nd June 2022
Jurisdiction invoked
Rule 11(2) of the Advocates Remuneration Order - reference against a Taxing Officer's ruling

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, "National Union of Water & Sewerage Employees v National Water & Sewerage Co. Ltd & another; Kenya County Government Workers Union (Applicant); Leonard K. Mbuvi t/a Katunga Mbuvi & Co. Advocates (Respondent) (Miscellaneous Application E209 of 2021) [2023] KEELRC 313 (KLR)", Case Analysis (2023). Chamber Summons Application dated 22nd June 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/313/eng@2023-02-13

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