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ELRCDismissedReference from Taxation arising from Cause No. 1410 of 2013 (with Advocate's application dated 20th July 2023)· [2024] KEELRC 744 (KLR)

Nairobi City County v Kenya Local Government Workers Union & another; Kenya County Government Workers Union (Client); Leonard K.Mbuvi t/a Katunga Mbuvi & Co. Advocates (Advocate) (Miscellaneous Application E208 of 2021) [2024] KEELRC 744 (KLR)

Employment and Labour Relations Court
8 April 2024
2,622 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ordered a workers' union to pay its former lawyer KSh 2.2 million in legal fees after failing to prove it had already paid KSh 3.1 million.

What this practically means

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Executive summary

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This ELRC judgment by Manani J (8 April 2024) determines a reference by Kenya County Government Workers Union against a Taxing Master's order of 30 June 2023 in a client-advocate Bill of Costs arising from Cause No. 1410 of 2013, together with the Advocate's application to enter judgment on the Certificate of Costs. The Union alleged two errors of principle: an increase of instruction fees from a base of Ksh. 6,300.00 to Ksh. 1,200,000.00, and failure to credit Ksh. 3,100,000.00 allegedly paid in fees. The Advocate opposed, contending the reference was res judicata and that no such payment was proved. The court held the reference was not res judicata since it arose from the fresh taxation of 30 June 2023, not the set-aside order of 31 May 2022. On the merits, the court applied the settled standard that interference requires an error of principle or a manifestly excessive award. Although the subject-matter value was not ascertainable from pleadings or judgment, the Taxing Master correctly invoked Schedule VI rule 1(i) of the Advocates Remuneration Order to fix the base fee, then justified the upscaling by the stakes involved: an added annual budget of approximately Ksh. 10,419,936 if the impugned CBA was implemented, and the jobs of some 25,000 employees. That plausible justification entitled the Taxing Master to award Ksh. 1,200,000.00. On the alleged payment, the Client's two affidavits by Roba Duba gave inconsistent figures (Ksh. 1,000,000 then Ksh. 3,100,000), and the 16 May 2014 receipt did not tie any payment to Cause No. 1410 of 2013, so no credit was due. The reference was dismissed; judgment was entered for the Advocate for Ksh. 2,205,638.00 with interest at court rates, and costs of both applications were granted to the Advocate.

Key legal issues

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01

Res judicata of the reference

Holding

The reference is not res judicata because it arises from the taxation order of 30th June 2023, not the earlier order of 31st May 2022 which was set aside and remitted

Reasoning

The earlier reference concerned the first taxation which was set aside and remitted to another Taxing Master. The impugned decision flowed from the fresh taxation. Although filed in a closed file, the reference raised distinct issues from a distinct taxation order.

p. 2
02

Increase of instruction fees from base Ksh. 6,300.00 to Ksh. 1,200,000.00

Holding

No error of principle; the Taxing Master correctly applied Schedule VI rule 1(i) of the Advocates Remuneration Order and justified the upscaling by the high stakes: an added annual budget of Ksh. 10,419,936 and the jobs of approximately 25,000 employees

Reasoning

Where the subject matter value is not ascertainable from pleadings or judgment, the Taxing Master may use discretion guided by complexity, importance, interest of parties and conduct of proceedings. Having given a plausible basis for the increment, the award stands unless manifestly excessive without justification.

p. 5
03

Credit for Ksh. 3,100,000.00 alleged fees payment

Holding

No error of principle; no evidence tied the payment to Cause No. 1410 of 2013, and the Client's conflicting affidavits (Ksh. 1,000,000 vs Ksh. 3,100,000) undermined the claim

Reasoning

Roba Duba swore two affidavits with inconsistent figures, and the receipt of 16th May 2014 did not show the payment related to Cause No. 1410 of 2013. The Client had entrusted the Advocate with many matters, so apportionment to the specific file was unsupported.

p. 5
04

Entry of judgment on the Certificate of Costs

Holding

Judgment entered for the Advocate in the sum of Ksh. 2,205,638.00 with interest, the reference having failed

Reasoning

Since the reference attacking the taxation order was dismissed, the obstacle to the Advocate's application dated 20th July 2023 fell away and judgment was entered in terms of the Certificate of Costs issued on 18th July 2023.

p. 5

Legal principles established

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  • A Judge on reference may not interfere with a Taxing Master's decision unless an error of principle is apparent
  • Where the Taxing Master has justified an increase in the base instruction fee, the reference court should be hesitant to interfere even if it would have awarded a different figure

Court orders

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  1. 1.The reference is dismissed
  2. 2.The Advocate's application dated 20th July 2023 is allowed and judgment entered for the Advocate against the Client in the sum of Ksh. 2,205,638.00 in terms of the Certificate of Costs issued on 18th July 2023
  3. 3.The Client to pay the Advocate interest on the decretal amount at court rates from the date of the order
  4. 4.Costs of the two applications granted to the Advocate
Jurisdiction invoked
Reference against a Taxing Master's taxation order under the Advocates Remuneration Order, 2009 (ELRC forum)

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, "Nairobi City County v Kenya Local Government Workers Union & another; Kenya County Government Workers Union (Client); Leonard K.Mbuvi t/a Katunga Mbuvi & Co. Advocates (Advocate) (Miscellaneous Application E208 of 2021) [2024] KEELRC 744 (KLR)", Case Analysis (2024). Reference from Taxation arising from Cause No. 1410 of 2013 (with Advocate's application dated 20th July 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/744/eng@2024-04-08

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