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ELRCPartially AllowedReference dated 5th June 2023 arising from Nakuru ELRC Cause No. 22 of 2019 (Advocate-Client Bill of Costs dated 9th November 2022)· [2023] KEELRC 1951 (KLR)

Benjamin v Magatta t/a Magatta & Njogu Advocates (Miscellaneous Application 41 of 2022) [2023] KEELRC 1951 (KLR)

Employment and Labour Relations Court
31 July 2023
HWHellen Wasilwa
6,094 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a lawyer who joined a case after it was filed cannot charge the filing fees, sending the bill back for fresh taxation.

What this practically means

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Executive summary

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This was a reference under Rule 11(1) & (2) of the Advocates Remuneration Order against the taxation ruling of 23rd May 2023 by Hon. Margaret Kyalo, which taxed the respondent advocate's advocate-client bill at Kshs 1,231,377.40. The applicant, Dr. Magare Gikenyi, objected principally that the respondent advocate, who came on record on 10th July 2019 after the firm of Nyachiro & Co. Advocates had filed ELRC Cause No. 22 of 2019, was not entitled to instruction fees and getting up fees covering the period before he was on record, that Kshs 100,000 had been agreed as full fees, that the getting up fees of Kshs 833,000 exceeded the statutory one-third of instruction fees, and that various items were erroneously allowed, including attendance fees for a day the court did not sit. The respondent raised a preliminary objection that no compliant notice of objection had been filed, rendering the reference a nullity, and argued the reference could only canvass points of law. Both parties filed submissions. The court, without expressly ruling on the preliminary objection, agreed with the applicant that a subsequent advocate is not entitled to instruction fees for a cause filed before he came on record, and found the reference raised pertinent issues requiring reconsideration. The court referred the bill of costs back for re-taxation by a taxing officer other than Hon. M. Kyalo SRM and ordered costs in the cause. Ruling delivered virtually on 31st July 2023 by Hellen Wasilwa, J.

Key legal issues

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01

Entitlement of a subsequent advocate to instruction fees

Holding

The respondent advocate, having come on record on 10th July 2019 after the cause was filed, is not entitled to instruction fees covering the period from filing in March 2019.

Reasoning

The court noted that the firm of Nyachiro & Co. Advocates filed the cause and were on record initially; the respondent firm only took over on 10/7/2019 upon filing a Notice of Appointment of Advocates. Agreeing with the applicant's submissions, the judge held the respondent could not claim instruction fees for a period when it was not on record, and found the reference raised pertinent issues requiring reconsideration by another taxing officer.

p. 10
02

Reference raising errors in taxation

Holding

The reference raised pertinent issues, including taxing items when the advocate was not on record and costs for a hearing that never took place, warranting re-taxation by a different taxing officer.

Reasoning

The court observed the applicant's complaint that the taxing master charged for items incurred when the respondent was not on record, and failed in awarding costs for a hearing that never took place (item No. 67). Finding these pertinent, the court did not itself re-assess the bill but remitted it to another taxing officer other than Hon. M. Kyalo SRM.

p. 10

Legal principles established

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  • An advocate who was not on record when a cause was filed is not entitled to the instruction fees for that cause; such fees belong to the advocate who drew and filed the suit.

Court orders

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  1. 1.The bill of costs is referred back for taxation to be reconsidered by another taxing officer other than Hon. M. Kyalo SRM
  2. 2.Costs in the cause

Authorities

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Legislation

  • Advocates Remuneration OrderRule 11(1) & (2)
  • Advocates ActSection 45
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (15)

  • Ahmednassir Abdikadir & Co. Advocates v National Bank of Kenya Limited
    [2006] 1 EA 5
  • Mukisa Biscuits Manufacturing Company Limited v West End Distributors Limited
    [1969] EA 696
  • KCB Bank Limited & Another v Yeswa Antony Joseph
    [2022] eKLR
  • Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others
    [2018] eKLR
  • M?irungu vs. R
    [1983] KLR 455
  • Maimai Hamise v Peris Tobiko & Others
    [2017] eKLR
  • Thomas K' Bahati t/a K'Bahati Advocates v Janendra Raichand Shah
    [2020] eKLR
  • Republic v Medical Practitioners & Dentist Board and 2 others Ex parte Mary A Omamo-Nyamogo
    [2017] eKLR
  • Joreth Limited vs. Kigano & Associates
    Civil Appeal No. 66 of 1999 [2002] 1 EA 92
  • Machira & Co Advocates v Arthur K Magugu & Another
    [2012] eKLR
  • Multiline Motors (Kenya) Ltd v Migori County Government
    [2021] eKLR
  • Evans Thiga Gaturu, Advocate v Kenya Commercial Bank Limited
    [2012] eKLR
  • Dennis K Magare & Ben Musundi t/a Magare Musundi & Co advocates v Parminder Singh Manku & Another
    [2021] eKLR
  • Twiga Motor Limited v Hon. Dalmas Otieno Anyango
    (2015) eKLR
  • Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others
    [2014] eKLR
Jurisdiction invoked
Rule 11(1) & (2) of the Advocates Remuneration Order 2009

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, "Benjamin v Magatta t/a Magatta & Njogu Advocates (Miscellaneous Application 41 of 2022) [2023] KEELRC 1951 (KLR)", Case Analysis (2023). Reference dated 5th June 2023 arising from Nakuru ELRC Cause No. 22 of 2019 (Advocate-Client Bill of Costs dated 9th November 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1951/eng@2023-07-31

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