Joseph Kithinji Gitonga & 1 other v Kiogora Mutai & Company Advocates
The bottom line
#Kenya's Court of Appeal ruled that disputes over a lawyer's 'facilitation fees' must be raised during the formal taxation of the legal bill, not used to block it, and advocates may keep client documents until fees are paid.
What this practically means
#Executive summary
#Key legal issues
#Whether the alleged illegality of 'facilitation fees' rendered the Bills of Costs incapable of being taxed and justified a stay of taxation
No. The purport of the facilitation fee item was not apparent from the material, and determination of whether items fall within the Advocates Remuneration Order or are illegal payments is for the taxing master, with recourse to the High Court by reference under Paragraph 11.
The Court reviewed the fee notes and found the nature of the facilitation fees unclear - they might be payments to officials or legitimate disbursements under rule 19 such as stamps, valuation charges and search fees. Notably, the Bills of Costs themselves contained no facilitation fee item, only 'ancillary registration charges'. The taxing master, empowered under Paragraph 13A to summon witnesses and direct production of documents, is the proper forum to interrogate such items. The judge therefore properly exercised his discretion in declining the stay.
Whether the respondent was entitled to retain the lease documents as a lien
Yes. Having found that legal fees had been incurred, the court below properly protected the advocate's lien under Order 52 rule 4(3) of the Civil Procedure Rules.
The respondent had been retained for the conveyance of 20 apartments and incorporation of a management company, and its fees remained unpaid since 2006. Order 52 rule 4(3) permits the court, where there is a claim for costs, to secure payment and protect the advocate's lien. The Court of Appeal found no reason to interfere with the judge's order protecting the lien over the retained lease documents.
Whether the judge's order that each party bear its own costs was a proper exercise of discretion
No. The respondent was the successful party below, yet no reasons were given for denying it costs; the costs order was set aside and costs awarded to the advocate in both courts.
Section 27(1) of the Civil Procedure Act provides that costs follow the event, though costs remain discretionary and appellate interference is limited. However, following Devram Dattan and James Koskei Chirchir, the discretion must be judicial and based on facts; where a successful litigant is denied costs, reasons must be given. The judge here gave none, constituting an error justifying appellate intervention.
Legal principles established
#- An appellate court will not interfere with the exercise of discretion by a single judge unless the judge misdirected himself, arrived at a wrong decision, or was clearly wrong in the exercise of discretion resulting in misjustice
- Unless divested of jurisdiction, the taxing master is obliged to tax Bills of Costs and has authority to interrogate the purpose of any item in a Bill, including whether items are illegal payments capable of rendering the Bill invalid; challenges to items belong in taxation and, on dissatisfaction, a reference to a judge under Paragraph 11 of the Advocates (Remuneration) Order
- Where a successful party is denied costs, the court must provide reasons; a bare order that each party bear its own costs without explanation is erroneous and liable to be set aside
Court orders
#- 1.The appeal on the stay of taxation and release of lease documents (Civil Appeal No. 41 of 2015) is dismissed; the learned judge's refusal of stay and protection of the advocate's lien is upheld
- 2.The order that each party bear its own costs is set aside
- 3.The appellant in Civil Appeal No. 56 of 2015 (Kiogora Mutai & Company Advocates) is awarded costs in the High Court and in this Court
- On appeal from
- High Court at Milimani Law Courts
- HC ELC No. 554 of 2014
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal over the High Court under the Constitution and the Court of Appeal Act (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Kithinji Gitonga & 1 other v Kiogora Mutai & Company Advocates", Case Analysis (2017). Civil Appeal No. 41 of 2015 (consolidated with Civil Appeal No. 56 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/469/eng@2017-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.