Nyambane & another v Kenya County Government Workers Union; Kenya County Government Workers Union (Applicant); Leonard K. Mbuvi t/a Katunga Mbuvi & Co. Advocates (Respondent) (Miscellaneous Case E247 of 2021) [2023] KEELRC 607 (KLR)
The bottom line
#Kenya's High Court threw out a Kshs 2 million legal fee award for procedural errors but confirmed clients who promise to pay cannot later use time limits to dodge the bill.
What this practically means
#Executive summary
#Key legal issues
#Whether the Bill of Costs was statute barred
Not statute barred; the applicant was estopped from pleading limitation by reason of its promise to pay fees and periodic part payments
The Taxing Officer had relied on part payment (a cheque of 24th November 2020) under Section 23(3) of the Limitation of Actions Act. While the court found that the Further Affidavit introducing the cheque was improperly on record and could not ameliorate the Respondent's case under Section 23(3), it nonetheless upheld jurisdiction on the basis of promissory estoppel under Section 39(1)(b): the applicant promised to pay and the advocate awaited periodic payments. The applicant did not deny owing monies or terminate the relationship formally.
Whether reliance on the improperly filed Further Affidavit was an error of principle
Yes - the Further Affidavit was not properly on record and ought not to have been relied upon
The original Further Affidavit dated 4th April 2022 bore no Registry stamp or acknowledgement, was not paid for, was filed without leave, and was not served on the applicant, denying it the right to respond guaranteed by Article 50 of the Constitution. The Respondent did not controvert the allegations with cogent evidence. The Taxing Officer erred in relying on it and on the cheque annexed to it.
Which Advocates Remuneration Order applied
The Advocates Remuneration Order, 2009 was the operative framework, as the suit was filed and concluded during its currency
The impugned ruling made no direct mention of either the 2009 or 2014 Order. The applicant argued the 2009 Order applied since instructions were given in 2011 and judgment delivered in 2013; the respondent relied on the 2014 Order without particularizing post-2014 actions. The court held the 2009 Order applied because the underlying suit was filed and concluded while it was in force.
Whether the award of Kshs.2,000,000 instruction fees was excessive / an error of principle
Yes - the assessment of instruction fees was set aside and remitted for fresh taxation
The Taxing Officer awarded the full Kshs.5,000,000 prayed for and relied on a judicial review decision (Republic v University of Nairobi) whose award of Kshs.4,000,000 was reduced to Kshs.2,000,000 by the Court of Appeal; an award based on authority since reduced by a superior court is unsustainable. The officer also failed to detail the Part II Schedule V factors. However, no error was found regarding overemphasis of the matter's importance or failure to consider the Kshs.300,000 payment.
Whether the Taxing Officer overemphasized the importance of the matter
No error of principle on this head
The Taxing Officer referenced the importance of the case to the parties but also addressed attraction of recruits to the profession per Premchand Raichand and time, research and skill per Republic v Ministry of Agriculture ex parte Muchiri Njuguna; moreover the parent file could not be traced, circumscribing her leeway.
Legal principles established
#- A party who promises to pay legal fees which the advocate relies on to his detriment is estopped from pleading limitation under Section 39(1)(b) of the Limitation of Actions Act
- A document presented to court must be presented at the Registry for authentication; an unfiled, unpaid and unserved Further Affidavit cannot be relied upon by a Taxing Officer
- The remuneration order applicable to a bill of costs is the one in force when the suit giving rise to the bill was filed and concluded
- A taxing officer's award of instruction fees is excessive (an error of principle) where the authority relied on was reduced by a superior court and the officer fails to detail the Part II Schedule V factors
Court orders
#- 1.The decision of the Taxing Officer in the ruling delivered on 14th June, 2022 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
- Paragraph 11(2) of the Advocates Remuneration Order (reference against a Taxing Officer's decision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyambane & another v Kenya County Government Workers Union; Kenya County Government Workers Union (Applicant); Leonard K. Mbuvi t/a Katunga Mbuvi & Co. Advocates (Respondent) (Miscellaneous Case E247 of 2021) [2023] KEELRC 607 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/607/eng@2023-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.