Union of Kenya Civil Servants v Kenya County Government Workers Union & another; Kenya County Government Workers Union (Applicant); K Mbuvi t/a Katunga Mbuvi & Co Advocates (Advocate) (Miscellaneous Case E216 of 2021) [2023] KEELRC 1958 (KLR)
The bottom line
#A Kenyan court trimmed a lawyer's Kshs.3.5 million fee but confirmed that clients who promise to pay cannot later claim the debt has expired.
What this practically means
#Executive summary
#Key legal issues
#Whether the Advocate-Client 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 by reason of its promise to pay fees, on which the advocate relied to his detriment.
Although time generally begins to run from the date of judgment, the applicant did not show when fees were payable or tender proof of payment. The applicant never denied owing the fees and never formally terminated the relationship. Under Section 39(1)(b), estoppel embraces promissory estoppel: the applicant promised to pay, the advocate awaited periodic payments in reliance, and it would be unfair to allow the applicant to resile. Section 23(3) part-payment analysis was, however, undermined by the improperly filed Further Affidavit.
Whether reliance on the Further Affidavit sworn 1st April 2022 constituted an error of principle
Yes. The Further Affidavit was neither filed, paid for nor served, and had no leave or Registry authentication; it was not properly on record and ought not to have been relied upon.
Documents presented physically must be lodged at the Registry for authentication and placement in the file. The original Further Affidavit bore no Registry stamp or acknowledgement, and the advocate admitted filing it manually due to technical challenges without evidence of payment or service. Since it introduced new evidence (the cheque of 24th November 2020) requiring rebuttal, its absence of service denied the applicant a fair hearing under Article 50. Reliance on it by the Taxing Officer was an error of principle vitiating the limitation finding based on part payment.
Whether the award of Kshs.3,500,000/= as instruction fees was excessive, amounting to an error of principle
Yes. The award was unsustainable, partly because it rested on a judicial review precedent whose figure had been reduced on appeal, and the Taxing Officer failed to apply the Advocates Remuneration Order, 2009 or particularise the Schedule V factors.
The court found the 2009 Remuneration Order applicable since the underlying suit was filed and concluded under it, yet the ruling made no mention of which Order was used. The authority relied on by the Taxing Officer (awarding Kshs.4,000,000/=) had been reduced to Kshs.2,000,000/= by the Court of Appeal as 'on the higher side', rendering the reliance unsustainable. The Taxing Officer ought to have set out the Part II Schedule V factors in detail. The assessment of instruction fees was accordingly set aside and remitted for fresh taxation.
Whether the Taxing Officer overemphasised the importance of the matter and failed to consider the Kshs.300,000/= payment
No error of principle. The Taxing Officer considered time, skill, research and other relevant factors, and the applicant could not deny the payment of Kshs.300,000/=.
The Taxing Officer referenced the importance of the case, attraction to the profession per Premchand Raichand, and time, research and skill deployed per the Ex parte Muchiri Njuguna guidelines; the unavailability of the parent file circumscribed her detail. On the payment, although the affidavit carrying the cheque was irregularly on record, the fact of payment was undeniable and the applicant itself invoked the cheque. Hence no error of principle arose on either count.
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 manifestly excessive as to justify an inference of error of principle.
- A document not filed in the Registry, not paid for and not served is not properly on record and cannot be relied upon by a court or taxing officer.
- The applicable Remuneration Order is the one in force when the suit giving rise to the bill was filed and concluded.
Court orders
#- 1.The decision of the Taxing Officer 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 10th June, 2022
- Jurisdiction invoked
- Paragraph 11(2) of the Advocates Remuneration Order (reference against a Taxing Officer's decision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Union of Kenya Civil Servants v Kenya County Government Workers Union & another; Kenya County Government Workers Union (Applicant); K Mbuvi t/a Katunga Mbuvi & Co Advocates (Advocate) (Miscellaneous Case E216 of 2021) [2023] KEELRC 1958 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1958/eng@2023-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.