Munyao & another v Otiende; Kenya County Government Workers Union (Applicant); Leonard K. Mbuvi t/a Katunga Mbuvi & Co. Advocates (Respondent) (Miscellaneous Application E218 of 2021) [2023] KEELRC 608 (KLR)
The bottom line
#A Kenyan court threw out a Kshs.5 million legal fee award for poor reasoning, but ruled the client can't dodge the bill by claiming it's too late.
What this practically means
#Executive summary
#Key legal issues
#Whether the Advocate-Client Bill of Costs was statute barred under Section 4(1) of the Limitation of Actions Act
The Bill of Costs was not statute barred; the applicant was estopped from pleading limitation because it promised to pay the advocate's fees and the advocate relied on that promise to his detriment.
The Taxing Officer had relied on Section 23(3) (part payment) via a cheque dated 24th November 2020. While the court found the Further Affidavit introducing the cheque was improperly on record, it independently held that the applicant promised to pay, made periodic payments without a fixed schedule, and never terminated the engagement. Under Sections 39(1)(b) and (2), incorporating promissory estoppel per Combe v Combe, the applicant could not resile from that promise to plead limitation.
Whether the Further Affidavit sworn by Leonard Katunga Mbuvi was properly on record
The Further Affidavit was not properly on record; it was presented out of time, neither filed nor paid for nor served, and reliance on it by the Taxing Officer was an error of principle.
The original copy bore no Registry stamp or acknowledgement. The advocate admitted physical delivery due to technical challenges but produced no evidence of payment or service. The affidavit introduced new evidence (the cheque) requiring rebuttal and was filed without leave, the day before the scheduled ruling date. Reliance on it unfairly prejudiced the applicant's right to a fair trial under Article 50 of the Constitution.
Which Advocates Remuneration Order applied to the taxation
The Advocates Remuneration Order, 2009 was the operative framework, since the instructions were given and the bulk of the work discharged during its currency.
The respondent argued for the 2014 Order but did not particularise the actions taken after 2013/2014. The ruling of the Taxing Officer made no direct mention of either Order. The court found the 2009 Order applicable on the facts as presented.
Whether the instruction fee of Kshs.5,000,000 was excessive and thus an error of principle
Yes. The Taxing Officer awarded the full amount prayed for without detailed justification against the Part II Schedule V factors, and relied on an award that had been reduced on appeal; the assessment of instruction fees was set aside.
The Taxing Officer relied on a decision of Nyamweya J. affirming Kshs.4,000,000 which the Court of Appeal reduced to Kshs.2,000,000 as being on the higher side. She ought to have reasoned in detail against the factors in Part II of Schedule V of the 2009 Order (care and labour, papers perused, importance, subject-matter value, complexity). Failure to do so justified interference; the bill was remitted to a different taxing officer for fresh taxation of instruction fees only.
Whether the Taxing Officer erred by overemphasising the importance of the matter and ignoring the Kshs.300,000 part payment
No error of principle was established on either ground.
The Taxing Officer had addressed importance alongside time, skill, research and attraction of recruits, and the untraceable parent file circumscribed her leeway. Although the affidavit introducing the cheque was improperly on record, the payment itself was common ground and its omission did not constitute an error of principle.
Legal principles established
#- 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
- A document neither filed, paid for, nor served, and placed on record without leave, is not properly on record and reliance on it prejudices the right to a fair hearing
- Under Section 39(1)(b) of the Limitation of Actions Act, promissory estoppel can preclude a client who promised to pay fees and whose advocate relied on that promise from pleading limitation
Court orders
#- 1.The decision of the Taxing Officer in the ruling delivered on 31st May 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
- Jurisdiction invoked
- Rule 11(2) of the Advocates Remuneration Order (reference against a Taxing Officer's decision); Article 162(2) jurisdiction of the ELRC implied
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munyao & another v Otiende; Kenya County Government Workers Union (Applicant); Leonard K. Mbuvi t/a Katunga Mbuvi & Co. Advocates (Respondent) (Miscellaneous Application E218 of 2021) [2023] KEELRC 608 (KLR)", Case Analysis (2023). Nairobi ELRC Miscellaneous Application No. E218 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/608/eng@2023-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.