Kenya Sugar Board v Otieno (Miscellaneous Case E295 of 2024) [2025] KEELRC 731 (KLR)
The bottom line
#The Employment and Labour Relations Court cut a lawyer's fee award from over Kshs 1.3 million to about Kshs 134,818, ruling that fees for the same work cannot be charged twice.
What this practically means
#Executive summary
#Key legal issues
#Whether the increase of instruction fees from Kshs. 101,114 to Kshs. 450,000 was a proper exercise of the taxing master's discretion
The increase was set aside because the criteria used (getting up and preparation in a contested suit) were the same criteria applicable to getting up fees, resulting in double recovery
The taxing master increased instruction fees by Kshs. 348,886 on grounds of care, labour, time spent and nature of the case - all getting up considerations. Having used those considerations once, the master could not rely on them again to award getting up fees. The additional allowance was therefore a misdirection and was set aside.
Whether the award of Kshs. 800,000 under paragraph 91 for preparation for trial was lawful
The award was set aside as an obvious misdirection since the taxing master had already awarded getting up fees of Kshs. 150,000 under paragraph 15
The taxing master had already compensated the respondent for preparation through getting up fees calculated as one third of instruction fees. Awarding a further distinct sum of Kshs. 800,000 for preparation for trial under item 91 effectively awarded the respondent twice under the same heading, which was unjustified.
On what basis should instruction fees be computed
Instruction fees were correctly computed at Kshs. 101,114 based on the ascertained value of the subject matter of Kshs. 2,607,600 under Schedule VI Rule 1(b) of the Advocates Remuneration Order 2009
Schedule VI Rule 1(b) ties instruction fees to the value of the subject matter ascertainable from pleadings, judgment or settlement. The judgment sum of Kshs. 2,607,600 was rightfully taken as the ascertained value, yielding Kshs. 77,000 for the first million plus 1.5% of the balance, totalling Kshs. 101,114.
Legal principles established
#- It is erroneous for a taxing master to apply getting up criteria to increase instruction fees and then apply the same criteria again to award getting up fees, as this amounts to double recovery under the same heading
- Instruction fees on a litigated claim are determined on the basis of the value of the subject matter ascertainable from the pleadings, judgment or settlement between the parties under Schedule VI Rule 1(b) of the Advocates Remuneration Order 2009
- Getting up fees are allowable at not less than one third of the taxed instruction fees where liability is denied and issues are joined by the pleadings (Schedule VI Rule 2, Advocates Remuneration Amendment Order 2014)
Court orders
#- 1.Set aside the additional allowance of Kshs. 348,886.00 on instruction fees awarded out of misdirection by the Taxing Master
- 2.Set aside the award of Kshs. 800,000.00 under paragraph 91 of the bill of costs
- 3.Substituted Item 14 (instruction fees) with Kshs. 101,114.00
- 4.Substituted Item 15 (getting up fees) with Kshs. 33,704.00 (1/3 x 101,114)
- 5.Substituted Item 91 with Nil
- 6.Ordered that the rest of the allowed amounts in the Taxing Master's Ruling are not affected
- 7.Each party to bear their own costs of the application
- Jurisdiction invoked
- Paragraph 4(2) of the Advocate's Remuneration Order (reference against a taxing master's decision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Sugar Board v Otieno (Miscellaneous Case E295 of 2024) [2025] KEELRC 731 (KLR)", Case Analysis (2025). Not stated in judgment (reference by chamber summons under paragraph 4(2) of the Advocate's Remuneration Order). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/731/eng@2025-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.