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Court of AppealDismissedCivil Appeal No. 211 of 2006

Kangethe & Co. Advocates v Kenya Pipeline Company Ltd [2011] KECA 157 (KLR)

Court of Appeal of Kenya
29 July 2011
2,254 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that when a contract has an arbitration clause, court instruction fees are pegged to the referral application, not the contract value.

What this practically means

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Executive summary

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The Court of Appeal (Omolo, O'Kubasu and Nyamu, JJ.A) dismissed an appeal by Kangethe & Co. Advocates against a High Court ruling (Ransley, J., dated 20 April 2006, H.C. Misc. Cause No. 598 of 2005) which reduced instruction fees on a taxed bill from Kshs.13,772,937 to Kshs.1,000,000. The bill arose from a construction contract between Kenya Pipeline Company and Donwoods Company Ltd containing an arbitration clause. After KPC suspended the project, Donwoods filed suit seeking referral to arbitration, an injunction, and judgment in terms of the arbitrator's award. The appellant filed a defence and counterclaim of Kshs.228,253,596 before its instructions were terminated. The taxing officer based instruction fees on the contract sum of Kshs.914,529,148.45 plus the counterclaim, but the High Court on reference reduced the fee. The Court of Appeal affirmed, holding that where a valid arbitration agreement exists the court's role under sections 6 and 10 of the Arbitration Act 1995 is purely facilitative; the referral order ended the suit and gave rise to a cause in the arbitration. The court had jurisdiction only over the interlocutory referral application, so instruction fees had to be confined to it, and the big contract figures were irrelevant. Filing the defence and counterclaim was a misapprehension of the law. The High Court's discretion was not faulted, the ruling was upheld in its entirety, and, both parties having come to court contrary to a valid arbitration agreement, the court made no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the taxing officer was right to base instruction fees on the contract sum of Kshs.914,529,148.45 and the counterclaim of Kshs.228,253,596
  2. 2.Whether the subject matter of the suit had a monetary value given that the suit sought a reference to arbitration and an injunction
  3. 3.Whether the correct schedule for taxation was Schedule VI(L) rather than Schedule VI(a) of the Advocates Remuneration Order
  4. 4.Whether the High Court judge erred in interfering with the taxing officer's decision in the absence of an error of principle
  5. 5.Whether instruction fees should have been confined to the interlocutory chamber application seeking referral to arbitration

Key legal issues

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01

Interaction of arbitration agreements with court proceedings and taxation of instruction fees

Holding

Where a matter is subject to an enforceable arbitration agreement and is referred to arbitration, the greater portion of costs including instruction fees arises in the arbitration, and court fees must be confined to what was lawfully before the court - the referral application.

Reasoning

Section 6 of the Arbitration Act obliges a court to stay proceedings and refer parties to arbitration absent the specified exceptions; section 10 bars court intervention except as provided in the Act. The referral order ended the suit and gave rise to a cause in the arbitration. Therefore the large figures relating to the contract sum had nothing to do with instruction fees before the court, and filing a defence and counterclaim was a misapprehension of the law.

p. 4
02

Interference with a taxing officer's decision by the High Court

Holding

The High Court correctly exercised its discretion to reduce the instruction fee from Kshs.13,772,937 to Kshs.1,000,000 because the taxing officer's award rested on a misapprehension of the applicable process and the law.

Reasoning

It was wrong for the taxing master to sanction a fee based on a glaring misapprehension of the law; what was rightfully before the court was the interlocutory application seeking a referral order. The appellate court could not fault the High Court's exercise of discretion and upheld the ruling in its entirety.

p. 4

Legal principles established

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  • Where a valid arbitration agreement exists, instruction fees are properly pegged to the interlocutory application for referral to arbitration, not to the value of the contract in dispute, because the High Court has no jurisdiction to entertain the substantive claim.
  • A taxing officer must take into account the substance and nature of the suit and the parties' agreement to arbitrate, failing which parties would pay costs twice over for the same subject matter.

Court orders

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  1. 1.The ruling of the High Court (Ransley, J.) upheld in its entirety
  2. 2.The appeal is dismissed
  3. 3.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi, Milimani Commercial Courts
H.C. Misc. Cause No. 598 of 2005
Jurisdiction invoked
First appellate jurisdiction over the High Court under the Constitution and the Appellate Jurisdiction Act (appeal from ruling on a taxed bill of costs)

Relief refused

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Restoration or upholding of the taxing officer's instruction fee of Kshs.13,772,937

The instruction fees should have been pegged to the interlocutory referral application, not the contract sum, since the court had no jurisdiction to entertain any claim beyond the reference to arbitration

p. 4

Costs of the appeal

Both parties came to court contrary to a valid arbitration agreement

p. 4

Costs

No order as to costs; each party to bear their own costs of the appeal

Quotable passages

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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 upshot is that in the circumstances we cannot fault the High Court's exercise of its discretion to award an instruction fee of Kshs.1,000,000 million and we accordingly uphold the ruling in its entirety. The appeal is dismissed. In the circumstances described both parties came to court contrary to a valid arbitration agreement and for this reason we make no order as to costs. It is so ordered.
p. 4Final orders - dismissal of appeal and no order as to costs
In law what was rightfully before the court is the interlocutory application seeking a referral order and therefore the instruction fees ought to have been confined to the application.
p. 4Basis of instruction fees where an arbitration clause exists
Except as provided in this Act no court shall intervene in matters governed by this Act.
p. 3Minimal court intervention in arbitration (section 10, Arbitration Act)
As at the time the appellants received the instructions they did not have a suit to defend but only had a reference to arbitration application to respond to
p. 4Nature of the advocate's instructions

Issues in the judgment

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minor

The instruction fee figure is stated inconsistently within the judgment: Kshs.13,772,937.23 in the opening narration versus Kshs.13,702,937 in ground 2 of the grounds of appeal.

minor

The judgment records the fee as 'Kshs.1,000,000 million', an internally inconsistent figure (one million versus one million million).

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, "Kangethe & Co. Advocates v Kenya Pipeline Company Ltd [2011] KECA 157 (KLR)", Case Analysis (2011). Civil Appeal No. 211 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/157/eng@2011-07-29

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