Kenya Airports Authority v Otieno Ragot and Company Advocates
The bottom line
#Supreme Court: Taxing officers have discretion in advocate-client costs, not just a formula.
What this practically means
#The Supreme Court ruled that when calculating what a client owes their lawyer, the court official (taxing officer) can use judgment, not just a simple formula. In this case, a huge claim was thrown out early, so the pleaded amount wasn't automatically the value. The officer must consider actual work done. A previous cost certificate between parties doesn't bind the officer in lawyer-client billing.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.What is the proper interpretation of the provisions of Schedule VI Part A and B of the Advocates Remuneration Order? In particular, whether the phrase 'fees prescribed in A above increased by one-half' effectively takes away the Taxing Officer's judicial discretion in the taxation of an Advocate-Client Bill of Costs.
- 2.What is the proper judicial interpretation of the term 'subject value' in instances where the subject matter of a dispute although pleaded is fictitious and unsubstantiated hence unascertainable from the pleadings?
- 3.Whether a certificate of taxation of Party-Party costs is binding per se on the Taxing Officer in the taxation of the Advocate-Client Bill of Costs, and whether such certificate completely fetters discretion in assessing instruction fees in Advocate-Client costs.
- 4.Whether costs awarded to an advocate should be allowed to be so punitive (in this case being an increment of instruction fees by the majority of the Court of Appeal from Kshs 5,000,000 to Kshs 196,044,750.50) with the effect of impeding access to justice as guaranteed under article 48 of the Constitution.
Key legal issues
#Whether the phrase 'fees prescribed in A above increased by one-half' in Schedule VI Part B removes the Taxing Officer's discretion in taxing Advocate-Client costs.
The phrase does not remove discretion; Rule 16 of the Advocates Remuneration Order preserves the Taxing Officer's discretion on every taxation to allow costs that appear necessary or proper for the attainment of justice.
The Supreme Court held that Rule 16 of the Advocates Remuneration Order, which states 'on every taxation the Taxing Officer may allow all such costs, charges and expenses as authorized in this Order as shall appear to him to have been necessary or proper for the attainment of justice', applies to all taxations including Advocate-Client costs under Part B. The Court found that the majority of the Court of Appeal erred in treating Part B as a mere arithmetic formula. Instead, the Taxing Officer must exercise judicial discretion guided by the prescribed scale, evaluating each item and determining reasonable fees commensurate with work done, not mechanically applying a one-half increase.
How should the value of the subject matter be determined for taxation where the suit is struck out at a preliminary stage and the pleaded claim is unsubstantiated?
Where a suit is struck out at a preliminary stage and the pleaded claim is unsubstantiated (e.g., special damages not proved), the pleaded figure does not automatically become the value of the subject matter; the Taxing Officer must exercise discretion to determine reasonable instruction fees.
The Supreme Court noted that the original plaintiffs claimed Kshs 13,932,000,000 as special damages but provided no particulars of the parcels of land or their value, and the suit was struck out before trial. The Court held that a claim struck out at a preliminary stage does not ipso facto render the pleaded amount the value of the subject matter. Since the value could not be determined from the pleadings, judgment or settlement, the Taxing Officer was entitled to exercise discretion under proviso (i) of Schedule VI Part A. The Court approved the reasoning in the Moronge case, finding it indistinguishable.
Whether a certificate of taxation of Party-Party costs is binding on the Taxing Officer when assessing Advocate-Client costs.
A certificate of taxed Party-Party costs is final as to the costs covered therein under section 51(2) of the Advocates Act, but it is not per se binding on the Taxing Officer when assessing Advocate-Client costs; the Taxing Officer may depart from it with reasons.
The Supreme Court interpreted section 51(2) of the Advocates Act, which states that a certificate of taxation is 'final as to the amount of the costs covered thereby'. The Court held that this finality applies to the costs covered in the Party-Party certificate, but does not prevent the Taxing Officer from evaluating the instruction fees afresh in the Advocate-Client taxation. Where the instruction fees in the certificate are disputed, the Taxing Officer must subject them to evaluation and may depart from them with reasons. The Court found that the Taxing Officer in this case properly exercised discretion to depart from the certificate because the value of the subject matter was unascertainable.
Legal principles established
#- Taxing officers have discretion under Rule 16 when assessing advocate-client costs; they are not limited to a mathematical formula.
- When the value of a case cannot be determined from pleadings, judgment, or settlement, the taxing officer must use discretion to assess reasonable instruction fees.
- A claim struck out at a preliminary stage does not automatically make the pleaded amount the value of the subject matter for taxation.
- A certificate of taxed party-party costs is final for those costs but not binding on the taxing officer when assessing advocate-client costs; the officer may depart with reasons.
Court orders
#- 1.The appeal dated April 17, 2023 and filed on April 25, 2023 is hereby allowed.
- 2.The majority judgment of the Court of Appeal dated May 19, 2021 in Civil Appeal No 39 of 2017 is hereby set aside.
- 3.The ruling of the High Court dated February 20, 2017 in HC Misc Applic No 95 of 2011 is hereby confirmed.
- 4.Each party will bear their own costs of the appeal and cross appeal before this court.
- 5.We hereby direct that the sum of Kshs 6,000 deposited as security for costs upon lodging of this appeal be refunded to the appellant.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal at Nairobi
- Civil Appeal No 39 of 2017
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution
Relief refused
#Permanent injunction restraining enforcement of the Court of Appeal decision and certificate of costs
The appeal was allowed and the Court of Appeal judgment set aside, rendering the injunction unnecessary.
Costs
Each party will bear their own costs of the appeal and cross appeal before this court.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the proper interpretation of Schedule VI Part B is that in assessing fees thereunder, including instruction fees, a Taxing Officer is required to exercise his/her discretion guided by the prescribed scale of fees in Part A. To our minds, that does not mean, as the impugned majority judgment found, that a Taxing Officer is simply to apply the mathematical formula to the instruction fees ascertained in the taxed Party-Party costs.
a claim in a suit which is struck out at the preliminary stage does not ipso facto render that claim or amount pleaded therein without more the value of the subject matter.
a certificate of taxed Party-Party costs is final on the costs/fees ascertained in the Party-Party costs. While instruction fees ascertained thereunder are not per se binding, when it comes to the assessment of Advocate-Client costs, a Taxing Officer is required to consider the matter and where he/she is satisfied that it is a true representation of the work done by the advocate, it can be applied
Each party will bear their own costs of the appeal and cross appeal before this court.
Key timeline
#Practical implications
#Discretion in advocate-client taxation restored
When taxing advocate-client bills, do not assume a mechanical 50% increase on party-party costs. The Supreme Court confirms you must exercise discretion under Rule 16, evaluating work done. If the value of the subject matter is unascertainable, justify your own assessment. Challenge any certificate that was based on a fictitious pleaded amount.
Challenge inflated legal fee claims
If your company faces a large legal bill based on a huge but unproven claim that was dismissed early, you can argue the taxing officer must use discretion. The Supreme Court says the pleaded amount is not automatically the value. Ensure your lawyer challenges any mechanical application of the one-half formula and requests a reasoned assessment.
Know your rights on lawyer fees
If you dispute your lawyer's bill, the taxing officer can set a reasonable fee based on actual work, not just a formula. Even if a previous cost certificate exists between the other side and your lawyer, it does not bind the officer. You can ask the officer to explain any departure from that certificate.
Frequently asked questions
#What is the effect of the Kenya Airports Authority v Otieno Ragot case on lawyer fees in Kenya?+
The Supreme Court ruled that taxing officers have discretion when setting advocate-client fees, not just a formula. They must consider actual work done. A huge unproven claim does not automatically set the fee value.
Can a Kenyan lawyer charge 50% more than party-party costs for advocate-client fees?+
Not automatically. The Supreme Court said the one-half increase in Schedule VI Part B is not a mechanical formula. The taxing officer must exercise discretion and justify the fee based on work done, not just apply a percentage.
Is a party-party cost certificate binding in advocate-client taxation in Kenya?+
No, it is not per se binding. The Supreme Court held that while the certificate is final for those costs, the taxing officer can depart from it when assessing what the client owes the lawyer, provided reasons are given.
How is the value of a case determined for lawyer fees in Kenya when the suit is struck out early?+
The Supreme Court said the pleaded amount does not automatically become the value. If the claim is unsubstantiated and struck out early, the taxing officer must use discretion to determine reasonable fees, considering the circumstances.
Later judgments citing this (25)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Njoroge & 2 others v Kenya Medical Supplies Authority & 3 others (Constitutional Petition E145 of 2024) [2026] KEELRC 2432 (KLR)[2026] KEELRC 2432 (KLR)20 Aug 2026
- Carlisle Development Co Ltd v National Land Commission (Miscellaneous Application E314 of 2025) [2026] KEELC 5292 (KLR)[2026] KEELC 5292 (KLR)17 Aug 2026
- Tom Ojienda & Associates v Nairobi City County (Civil Appeal 273 of 2020) [2026] KECA 1612 (KLR)[2026] KECA 1612 (KLR)31 Jul 2026applied
- Eveline (Suing on Her Behalf and on Behalf of the Estate of the Late Peter Waugh) v Kiiru & 3 others (Environment and Land Case 74 of 2014) [2026] KEELC 5132 (KLR)[2026] KEELC 5132 (KLR)23 Jul 2026applied
- Chaudhri & Associates v Registered Trustees of Sheikh Zayed Bin Sultan Al-Nahyan (Miscellaneous Civil Application E204 of 2022) [2026] KEELC 4834 (KLR)[2026] KEELC 4834 (KLR)21 Jul 2026followed
- Chaudhri & Associates v Registered Trustees of Sheikh Zayed Bin Sultan Al-Nahyan (Miscellaneous Civil Application E204 of 2022) [2026] KEELC 4833 (KLR)[2026] KEELC 4833 (KLR)21 Jul 2026applied
- Chaudhri & Associates v Registered Trustees of Sheikh Zayed Bin Sultan Al – Nahyan (Miscellaneous Civil Application E203 of 2022) [2026] KEELC 4815 (KLR)[2026] KEELC 4815 (KLR)21 Jul 2026followed
- Chaudhri & Associates v Registered Trustees of Sheikh Zayed Bin Sultan Al – Nahyan (Miscellaneous Civil Application E202 of 2022) [2026] KEELC 4812 (KLR)[2026] KEELC 4812 (KLR)21 Jul 2026
- Chaudhri & Associates v Registered Trustees of Sheikh Zayed Bin Sultan Al – Nahyan (Miscellaneous Civil Application E202 of 2022) [2026] KEELC 4812 (KLR)[2026] KEELC 4812 (KLR)21 Jul 2026followed
- Chaudhri Associates v Registered Trustees of Sheikh Zayeed Bin Sultan Al-Nahyan (Miscellaneous Civil Application E203 of 2022) [2026] KEELC 4799 (KLR)[2026] KEELC 4799 (KLR)21 Jul 2026applied
- Chaudhri & Associates v Registered Trustees of Sheikh Zayeed Bin Sultan Al-Nahyan (Miscellaneous Civil Application E202 of 2022) [2026] KEELC 4797 (KLR)[2026] KEELC 4797 (KLR)21 Jul 2026followed
- Kenya Power & Lighting Company PLC v CP Onono & Company Advocates (Environment and Land Case E010 of 2017) [2026] KEELC 4788 (KLR)[2026] KEELC 4788 (KLR)16 Jul 2026applied
- Karume & 3 others v Chief Land Registrar & 3 others (Environment and Land Case 816 of 2012 & 47 of 2010 (Consolidated)) [2026] KEELC 4618 (KLR)[2026] KEELC 4618 (KLR)13 Jul 2026
- Lubulella Associates v Kitongi Investments Ltd & 2 others (Environment and Land Miscellaneous Application E014 of 2021) [2026] KEELC 3473 (KLR)[2026] KEELC 3473 (KLR)9 Jun 2026distinguished
- Mulongo & Company Advocates LLP v Kenzuri Industrial Limited (Environment and Land Miscellaneous Case E074 of 2025) [2026] KEELC 3309 (KLR)[2026] KEELC 3309 (KLR)2 Jun 2026
- Mulondo & Company Advocates LLP v Huming PVC Company Limited (Environment and Land Miscellaneous Case E071 of 2025) [2026] KEELC 3308 (KLR)[2026] KEELC 3308 (KLR)2 Jun 2026
- Narok County Government v Kemboy Law Advocates (Environment and Land Miscellaneous Application E005 of 2023) [2026] KEELC 3478 (KLR)[2026] KEELC 3478 (KLR)14 May 2026followed
- Kemboy Law Advocates v Narok County Government (Environment and Land Miscellaneous Application E016 of 2023) [2026] KEELC 3481 (KLR)[2026] KEELC 3481 (KLR)14 May 2026
- Kemboy Law Advocates v Narok County Government (Environment and Land Miscellaneous Application E016 of 2023) [2026] KEELC 3481 (KLR)[2026] KEELC 3481 (KLR)14 May 2026
- Narok County Government v Kemboy Law Advocates (Environment and Land Miscellaneous Application E009 of 2023) [2026] KEELC 3480 (KLR)[2026] KEELC 3480 (KLR)14 May 2026applied
- Ngonyo Munyua & Company Advocates v Kivuti (Environment and Land Miscellaneous Case E022 of 2024) [2026] KEELC 2609 (KLR)[2026] KEELC 2609 (KLR)5 May 2026applied
- Aly Enterprises Limited v Absa Bank Kenya Plc & 4 others; Mafuta Products Limited & another (Interested Parties) (Environment and Land Case E039 of 2024) [2026] KEELC 2252 (KLR)[2026] KEELC 2252 (KLR)23 Apr 2026applied
- Kohlenberg Foundation v Langton Investments Limited & 3 others (Environment and Land Case E285 of 2024) [2026] KEELC 2197 (KLR)[2026] KEELC 2197 (KLR)17 Apr 2026followed
- Kinjunje Gardens Limited & another v NCBA Bank Kenya PLC (Environment and Land Case E353 of 2024) [2026] KEELC 1567 (KLR)[2026] KEELC 1567 (KLR)12 Mar 2026followed
- Kihiu & 3 others v Muugano Wa Wanavijji /Akiba Mashinani Trust (Environment and Land Case Civil Suit 1112 of 2013) [2026] KEELC 880 (KLR)[2026] KEELC 880 (KLR)19 Feb 2026
Cite this brief
#Cite this brief
Caselaw, "Kenya Airports Authority v Otieno Ragot and Company Advocates", Case Analysis (2024). Petition E011 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/44/eng@2024-08-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.