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ELRCPartially AllowedCause E071 of 2022· [2023] KEELRC 710 (KLR)

National Union of Water & Sewerage Employees & 3 others v Nairobi Water & Sewerage Co Ltd & 3 others; Mbuvi t/a Katunga Mbuvi & Co Advocate (Applicant); Kenya County Government Workers Union (Respondent) (Miscellaneous Application E214 of 2021) [2023] KEELRC 710 (KLR)

Employment and Labour Relations Court
20 March 2023
5,598 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out an Sh8 million legal fee award, ruling it excessive and based on an affidavit that was never properly filed or served.

What this practically means

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Executive summary

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This was a Chamber Summons reference under Rule 11(2) of the Advocates Remuneration Order by the client, Mombasa Maize Millers Ltd, seeking to overturn a Taxing Officer's ruling of 14th June 2022 taxing the advocate's Bill of Costs dated 11th November 2021 at Kshs.14,082,365.28. The applicant argued the bill was statute barred since the underlying matter concluded in 2013; that the Taxing Officer relied on a Further Affidavit and cheque improperly sneaked onto the record without filing, payment or service; that the award of Kshs.8,000,000 instruction fees was grossly excessive; and that the Taxing Officer ignored payments made. The advocate resisted, maintaining the bill was properly taxed, the affidavit was manually filed due to technical challenges, and the award was lawful. The court framed two issues: whether the bill was statute barred and whether errors of principle were committed. On limitation, the court upheld the Taxing Officer, holding the client estopped under Section 39(1)(b) of the Limitation of Actions Act from pleading limitation given its promise to pay. On errors of principle, the court found the Taxing Officer erred by relying on the unfiled, unpaid and unserved Further Affidavit, contrary to the client's right to fair hearing under Article 50. The court also held the Advocates Remuneration Order 2009 applied and that the Kshs.8,000,000 instruction fee, anchored on an award later reduced by the Court of Appeal, was unsustainable and excessive. No error was found regarding overemphasis of the matter's importance or the Kshs.300,000 payment. The court set aside the instruction fee assessment, remitted the bill to another Taxing Officer for fresh taxation of instruction fees, and ordered each party to bear its own costs of the application.

Key legal issues

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01

Whether the Bill of Costs was statute barred under the Limitation of Actions Act

Holding

The Bill was not statute barred; the applicant was estopped from pleading limitation under Section 39(1)(b) of the Limitation of Actions Act having promised to pay fees on which the advocate relied

Reasoning

The applicant did not deny promising to pay for services rendered and did not tender evidence that fees were payable before or at judgment. The doctrine of promissory estoppel under Section 39(1)(b) precluded the applicant from reverting to the previous legal relations. The Taxing Officer's finding of jurisdiction was therefore upheld.

p. 7
02

Whether the Taxing Officer erred by relying on a Further Affidavit that was not filed, paid for or served

Holding

The Taxing Officer committed an error of principle by relying on the Further Affidavit and the annexed cheque

Reasoning

The affidavit lacked a Registry stamp or acknowledgement, no evidence of payment or service was availed, and the applicant was denied the opportunity to respond, breaching the right to fair hearing under Article 50. The respondent did not controvert the argument that it was not properly on record, having been placed there the day before the ruling date.

p. 9
03

Whether the award of Kshs.8,000,000 as instruction fees was an error of principle

Holding

The award was excessive and unsustainable and justified the court's intervention; the instruction fee assessment was set aside and remitted for fresh taxation

Reasoning

The Taxing Officer relied on Republic v University of Nairobi where Nyamweya J affirmed Kshs.4,000,000, but that award was reduced to Kshs.2,000,000 by the Court of Appeal. Reliance on a superior court-reversed award rendered the decision unsustainable, and the Taxing Officer failed to particularize complexity or novelty against the Part II Schedule V factors.

p. 10
04

Whether the applicable Remuneration Order was that of 2009 or 2014

Holding

The Advocates Remuneration Order, 2009 applied

Reasoning

The suit giving rise to the bill was filed and concluded during the currency of the 2009 Order and the impugned ruling itself stated that the 2009 Order applied. Alleged post-2013 actions by the advocate were not particularized.

p. 10

Legal principles established

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  • A judge 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
  • Documents presented physically to court must be delivered to the Registry for authentication; an unfiled, unpaid-for and unserved affidavit cannot be relied upon as it prejudices the right to fair hearing
  • Taxation of costs is not a mathematical exercise but a matter of opinion based on experience

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
Jurisdiction invoked
Rule 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, "National Union of Water & Sewerage Employees & 3 others v Nairobi Water & Sewerage Co Ltd & 3 others; Mbuvi t/a Katunga Mbuvi & Co Advocate (Applicant); Kenya County Government Workers Union (Respondent) (Miscellaneous Application E214 of 2021) [2023] KEELRC 710 (KLR)", Case Analysis (2023). Cause E071 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/710/eng@2023-03-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.