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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Bill of Costs was statute barred under Section 4(1) of the Limitation of Actions Act
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
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.
Whether reliance on the Further Affidavit sworn 4th April 2022 was an error of principle
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
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.
Whether the award of Kshs.2,000,000 as instruction fees was excessive and erroneous in principle
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
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.
Whether the Taxing Officer erred by not deducting the Kshs.300,000 payment
No error of principle established; the payment formed part of 'all other circumstances of the case' which the Taxing Officer was entitled to weigh
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.
Legal principles established
#- 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
#- 1.The decision of the Taxing Officer as regards the assessment of instruction fees is set aside
- 2.The Bill of Costs be referred to another Taxing Officer for fresh taxation of the instruction fees
- 3.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; supervisory jurisdiction over the Taxing Officer's ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.