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ELRCPartially AllowedChamber Summons Application dated 13th June, 2022 (reference under Rule 11(2) of the Advocates Remuneration Order)· [2023] KEELRC 598 (KLR)

Nyerere & another v Kenya County Government Workers Union; Kenya County Government Workers Union (Applicant); Leonard K. Mbuvi t/a Katunga Mbuvi & Co. Advocates (Respondent) (Miscellaneous Application E246 of 2021) [2023] KEELRC 598 (KLR)

Employment and Labour Relations Court
13 March 2023
5,760 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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A Kenyan court cut a law firm's multi-million shilling fee award, ruling the tax officer justified the huge instruction fee too vaguely—but still ordered the union to pay up.

What this practically means

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Executive summary

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The applicant, a trade union, filed a reference under Rule 11(2) of the Advocates Remuneration Order challenging a Taxing Officer's ruling of 31st May 2022 taxing the respondent advocate's Bill of Costs at Kshs.3,560,140.92. The applicant sought a stay, dismissal of the bill as time barred, striking out of a Further Affidavit allegedly 'sneaked' into the record, and remittal for re-taxation. The court framed two issues: whether the bill was statute barred and whether the Taxing Officer committed errors of principle. On limitation, the court held the bill was not time barred: the applicant had promised to pay and, relying on Sections 23(3) and 39(1)(b) and (2) of the Limitation of Actions Act and the doctrine of promissory estoppel from Combe v Combe, was estopped from pleading limitation. On the Further Affidavit, the court found it was neither filed, paid for, nor served, and bore no registry stamp; reliance on it was an error of principle violating the applicant's right to a fair hearing under Article 50. On instruction fees, the court held the Advocates Remuneration Order 2009 was the operative framework; the Taxing Officer failed to justify the enhancement by reference to Part II of Schedule V and relied on an award subsequently reduced by the Court of Appeal, rendering it excessive. However, no error of principle was found regarding overemphasis of the matter's importance or failure to deduct the Kshs.300,000 payment. The court partially allowed the reference, setting aside the assessment of instruction fees and remitting the bill to another Taxing Officer for fresh taxation, with each party bearing its own costs of the application.

Key legal issues

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01

Whether the Bill of Costs was statute barred under Section 4(1) of the Limitation of Actions Act

Holding

The bill was not statute barred; the applicant was estopped from pleading limitation by reason of its promise to pay fees, on which the advocate relied to his detriment

Reasoning

Although time generally runs from the date of judgment, the applicant did not explain when fees were payable or tender evidence of payment. Section 23(3) permits fresh accrual on acknowledgement or part payment, and Section 39(1)(b) incorporates promissory estoppel as explained by Denning LJ in Combe v Combe. The applicant never denied promising to pay, and the services were not gratuitous.

p. 7
02

Whether reliance on the Further Affidavit sworn 4th April 2022 was an error of principle

Holding

Yes - the affidavit was not properly on record, having not been filed, paid for, or served, and the Taxing Officer erred in relying on it

Reasoning

The original affidavit bore no registry stamp or acknowledgement, was placed on record the day before the scheduled ruling date, and no leave to regularise it was sought. Service is mandatory when new evidence requiring rebuttal is introduced; its absence denied the applicant a fair hearing under Article 50. Following SM v HGE and Mombasa Cement Ltd v Speaker National Assembly, the affidavit ought to have been struck out.

p. 8
03

Whether the award of Kshs.2,000,000 as instruction fees was excessive and erroneous in principle

Holding

Yes - the Taxing Officer failed to particularise justification under Part II of Schedule V of the Advocates Remuneration Order, 2009, and relied on an award that the Court of Appeal had since reduced

Reasoning

The suit was filed and concluded during the currency of the 2009 Order, which was thus the operative framework. The Taxing Officer relied on Republic v University of Nairobi where an award was reduced on appeal, making it unsustainable. She ought to have been more detailed in applying the Schedule V factors (care and labour, importance, complexity, value of subject matter) to justify the enhancement.

p. 11
04

Whether the Taxing Officer erred by not deducting the Kshs.300,000 payment

Holding

No error of principle established; the payment formed part of 'all other circumstances of the case' which the Taxing Officer was entitled to weigh

Reasoning

Guided by Part II of Schedule V and the decisions in B. Mbai & Associates and Spire Properties, the court found the applicant had not demonstrated an error of principle on this head, notwithstanding that it paradoxically both contested the affidavit introducing the cheque and relied on it to allege failure to deduct the payment.

p. 11

Legal principles established

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  • A court will not interfere with a Taxing Officer's decision unless it is shown to be based on an error of principle or the fee is so manifestly excessive as to justify an inference of error of principle
  • A document not filed, paid for or served is not properly on record and reliance on it prejudices the right to fair hearing under Article 50
  • Promissory estoppel under Section 39(1)(b) of the Limitation of Actions Act defeats a limitation defence where a debtor's promise to pay was relied on to detriment

Court orders

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  1. 1.The decision of the Taxing Officer as regards the assessment of instruction fees is set aside
  2. 2.The Bill of Costs be referred to another Taxing Officer for fresh taxation of the instruction fees
  3. 3.Each party shall bear its own costs of the Applicant's Chamber Summons dated 22nd June, 2022

Authorities

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Legislation

  • Advocates Remuneration OrderRule 11(2); Part II of Schedule V
  • Limitation of Actions Act, Cap 22 Laws of KenyaSections 4(1), 23(1), 23(3), 39(1)(b), 39(2)
  • Constitution of Kenya, 2010Articles 41(2)(c), 48, 50, 159(2)(d)
  • Civil Procedure ActSection 27; Section 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (25)

  • Akide & Co. Advocates V Kenindia Assurance Co. Ltd
    (2021) eKLR
  • Maina Njuguna & Associates V Chege Gichuru t/a Exodus Transporters
    (2017) eKLR
  • SM V HGE
    (2019) eKLR
  • Nyangito & Co. Advocates V Doinyo Lessos Creameries Ltd
    (2014) eKLR
  • Nolly K. Musango V Peter Odanga & another
    (2021) eKLR
  • Kipkorir Titoo & Kihara Advocates V Deposit Protection Fund
    (2005)
  • B. Mbai & Associates Advocates V Clerk, Kiambu County Assembly & another
  • Spire Properties (K) Ltd t/a Diani Reef Beach Resort & SPA V Nyachoti & Co. Advocates
    (2018) eKLR
  • Wycliffe Chitayi Muhalya V Dorothy Awiti Omboto t/a Dao Associates & another
    (2017) eKLR
  • Metro Petroleum Ltd V Onyango Oloo & Co. Advocates
    (2016) eKLR
  • Tom Ojienda V County Government of Meru
    (2021) eKLR
  • Joreth Ltd V Kigano & Associates Advocates
    (2002) eKLR
  • Republic V Ministry of Agriculture & 20 others, Ex Parte Muchiri W. Njuguna
    (2006) eKLR
  • Cecilia Karuru Ngayu V Barclays Bank of Kenya & another
    (2016) eKLR
  • Macharia & Co. Advocates V Magugu
    (2002) EA 428
  • Wilfred N. Konosi t/a Konosi & Co. Advocates V Fiamco Ltd
    (2017) eKLR
  • Combe V Combe
    (1951) 2 KB 15
  • Kagwimi Kangethe & Co. Advocates V O-lerai Nurseries Ltd
  • Arthur V Nyeri Electricity Undertaking
  • Devshi Dhanji V Kanji Naran Patel (No. 2)
    [1978] KLR 243
  • First American Bank of Kenya V Shah & others
  • Alice Yano t/a Yano & Co. Advocates V Rebecca Nadupoi Supeyo & another
    (2021) eKLR
  • Premchand Raichand Ltd & another V Quarry Services East Africa Ltd & another
    (1972) E.A 162
  • Mombasa Cement Ltd V Speaker National Assembly & another
    (2018) eKLR
  • Republic V University of Nairobi & another
Jurisdiction invoked
Rule 11(2) of the Advocates Remuneration Order; supervisory jurisdiction over the 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, "Nyerere & another v Kenya County Government Workers Union; Kenya County Government Workers Union (Applicant); Leonard K. Mbuvi t/a Katunga Mbuvi & Co. Advocates (Respondent) (Miscellaneous Application E246 of 2021) [2023] KEELRC 598 (KLR)", Case Analysis (2023). Chamber Summons Application dated 13th June, 2022 (reference under Rule 11(2) of the Advocates Remuneration Order). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/598/eng@2023-03-13

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