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ELRCPartially Allowed· [2023] KEELRC 607 (KLR)

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)

High Court of Kenya
13 March 2023
6,295 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a reference under paragraph 11(2) of the Advocates Remuneration Order by a trade union client challenging a Taxing Officer's ruling of 31st May, 2022 taxing an advocate-client bill of costs at Kshs.3,624,829.48, including instruction fees of Kshs.2,000,000/-, arising from an unfair termination suit at the Industrial Court. The applicant sought to have the bill struck out as time barred under Section 4(1) of the Limitation of Actions Act, to set aside the taxation for errors of principle, and to strike out a Further Affidavit sworn on 4th April, 2022 which was allegedly filed, paid for and served irregularly. Gakeri J held that although time ordinarily runs from judgment (4th November, 2013), the applicant was estopped under Section 39(1)(b) of the Limitation of Actions Act from pleading limitation, having promised to pay fees and made occasional part payments; the bill was therefore not statute barred. However, the court found the Further Affidavit was never properly filed, paid for or served, lacked Registry authentication and was filed without leave, so reliance on it by the Taxing Officer breached the applicant's Article 50 fair hearing rights and constituted an error of principle; Section 23(3) could not ameliorate the respondent's case. The court held the Advocates Remuneration Order, 2009 (not the 2014 Order) applied. It found no error regarding overemphasis of the matter's importance or failure to consider the Kshs.300,000 payment, but held the instruction fee award excessive since the authority relied on (Republic v University of Nairobi) had been reduced by the Court of Appeal. The assessment of instruction fees was set aside and the bill remitted to a different Taxing Officer for fresh taxation, with each party bearing its own costs.

Key legal issues

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01

Whether the Bill of Costs was statute barred

Holding

Not statute barred; the applicant was estopped from pleading limitation by reason of its promise to pay fees and periodic part payments

Reasoning

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.

p. 8
02

Whether reliance on the improperly filed Further Affidavit was an error of principle

Holding

Yes - the Further Affidavit was not properly on record and ought not to have been relied upon

Reasoning

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.

p. 9
03

Which Advocates Remuneration Order applied

Holding

The Advocates Remuneration Order, 2009 was the operative framework, as the suit was filed and concluded during its currency

Reasoning

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.

p. 11
04

Whether the award of Kshs.2,000,000 instruction fees was excessive / an error of principle

Holding

Yes - the assessment of instruction fees was set aside and remitted for fresh taxation

Reasoning

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.

p. 12
05

Whether the Taxing Officer overemphasized the importance of the matter

Holding

No error of principle on this head

Reasoning

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.

p. 12

Legal principles established

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  • 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

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  1. 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. 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 Orderparagraph 11(2)
  • Advocates Remuneration Order, 2009Part II of Schedule V; Schedule VI (1)(b)
  • Advocates Remuneration Order, 2014not specified
  • Limitation of Actions Act, Cap 22Sections 4(1), 23(1), 23(3), 39(1)(b) and (2)
  • Constitution of Kenya, 2010Articles 50, 48, 159(2)(d)
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (26)

  • Akide & Co. Advocates V Kenindia Assurance Co. Ltd
    (2021) eKLR
  • Maina Njuguna & Associates
  • SM V HGE
    (2019) eKLR
  • Katunga Mbuvi & Co. Advocates V Kenya County Government Workers Union
  • First American Bank of Kenya V Shah & others
    (2002) 1EA 64
  • Nolly K. Musango V Peter Odanga & another
    (2021) eKLR
  • Kipkorir Titoo & Kihara Advocates V Deposit Protection Fund
    (2005) eKLR
  • Republic V Ministry of Agriculture & 20 others, Ex Parte Muchiri W. Njuguna
  • Spire Properties (K) Ltd t/a Diani Reef Beach Resort & SPA V Nyachoti & Co. Advocates
    (2018) eKLR
  • B. Mbai & Associates V Clerk, Kiambu County Assembly & another
  • Mwakio Kirwa Advocates V County Public Service of Bomet
    (2021) 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
  • Kiru Tea Factory Co. Ltd V Stephen Maina Githiga & 3 others
    (2019) 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
  • Premchand Raichand Ltd & another V Quarry Services East Africa Ltd & another
    (1972) E.A 162
  • 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
  • Alice Yano t/a Yano & Co. Advocates V Rebecca Nadupoi Supeyo & another
    (2021) eKLR
  • Joreth Ltd V Kigano & another
  • Republic V University of Nairobi & another
  • Mombasa Cement Ltd V Speaker National Assembly & another
    (2018) eKLR
  • Nyagito & Co. Advocates V Doinyo Lessos
Jurisdiction invoked
Paragraph 11(2) of the Advocates Remuneration Order (reference against a Taxing Officer's decision)

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, "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.