Republic & another v Industrial Court of Kenya & 2 others; Leonard K. Mbuvi t/a Katunga Mbuvi & Co. Advocates (Applicant); Kenya County Government Workers Union (Respondent) (Miscellaneous Application E211 of 2021) [2023] KEELRC 653 (KLR)
The bottom line
#Kenya's Employment Court threw out a Kshs.5 million legal fee award against a union, ordering a fresh taxation, but said the union couldn't dodge the old bill on timing.
What this practically means
#Executive summary
#Key legal issues
#Whether the Bill of Costs was statute barred under the Limitation of Actions Act
The bill was not statute barred; the applicant was estopped from pleading limitation under Sections 23 and 39 of the Limitation of Actions Act having promised to pay fees which the advocate relied upon
The court found the applicant never denied owing the advocate monies nor formally terminated the retainer, amounting to tacit admission. Applying the doctrine of promissory estoppel as explained by Denning LJ in Combe v Combe and Section 39(1)(b) of the Limitation of Actions Act, the applicant's promise to pay, relied upon by the advocate to his detriment, estopped it from pleading limitation. The court therefore upheld the Taxing Officer's finding of jurisdiction.
Whether the Taxing Officer's reliance on the Further Affidavit of 4th April 2022 was an error of principle
Yes. The Further Affidavit was neither filed, paid for, nor served and, lacking leave and registry authentication, was not properly on record and should not have been relied upon
The affidavit bore no registry stamp or acknowledgement and was placed on record the day before the scheduled ruling date. The respondent did not controvert the want of payment and service with cogent evidence, nor obtain leave to regularise it. Since it introduced new evidence (the cheque) requiring rebuttal, its use denied the applicant a fair hearing under Article 50, constituting an error of principle that vitiated the finding on limitation.
Whether the award of Kshs.5,000,000/= as instruction fees was an error of principle
Yes. The award, which simply adopted the amount prayed for, was unsustainable given the Court of Appeal had reduced a comparable award of Kshs.4,000,000/= to Kshs.2,000,000/=, and the Taxing Officer failed to particularise justification by reference to the Schedule V factors
The court held the Advocates Remuneration Order, 2009 was the operative framework since the underlying suit was filed and concluded during its currency. The Taxing Officer awarded the full amount prayed for without detailed justification under Part II of Schedule V. Reliance on Republic v University of Nairobi was misplaced because the affirmed Kshs.4,000,000/= was reduced on appeal to Kshs.2,000,000/= as being on the higher side, making the award excessive and justifying intervention.
Whether the Taxing Officer overemphasized the nature and importance of the matter or failed to consider the Kshs.300,000/= payment
No error of principle was established on either head
The Taxing Officer had considered not only the importance of the matter but also time, research, skill and the attraction of recruits to the profession per Premchand Raichand, and her leeway was arguably circumscribed by the untraceable parent file. On the payment, although the affidavit introducing the cheque was improperly on record, the fact of the Kshs.300,000/= payment was common ground, and the applicant could not show the Taxing Officer erred in that regard.
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 cannot be relied upon in determining a bill of costs, as its use prejudices the right to fair trial
- Promissory estoppel under Section 39(1)(b) of the Limitation of Actions Act can bar a client from pleading limitation against an advocate's bill where a promise to pay was made and relied upon
- Taxation of costs is not a mathematical exercise but a matter of opinion based on experience
- A Taxing Officer should justify enhancement of instruction fees by reference to the factors in Part II of Schedule V of the applicable Remuneration Order
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
- Rule 11(2) of the Advocates Remuneration Order (reference against a Taxing Officer's ruling)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic & another v Industrial Court of Kenya & 2 others; Leonard K. Mbuvi t/a Katunga Mbuvi & Co. Advocates (Applicant); Kenya County Government Workers Union (Respondent) (Miscellaneous Application E211 of 2021) [2023] KEELRC 653 (KLR)", Case Analysis (2023). Chamber Summons Application dated 23rd June, 2022 (Advocate-Client Bill of Costs taxation reference). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/653/eng@2023-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.