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Court of AppealPartially AllowedNairobi Civil Appeal No. E202 of 2019

University of Nairobi & another v Moses (Civil Appeal 119 of 2020) [2022] KECA 45 (KLR)

Court of Appeal
4 February 2022
5,373 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal cut a lawyer's fee award from Kshs.4 million to Kshs.2 million, ruling it excessive, but confirmed the client must still pay.

What this practically means

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Executive summary

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This first appeal challenged the High Court ruling of P. Nyamweya, J. (as she then was) dated 21st November 2018, which dismissed the appellants' reference against a Taxing Master's decision awarding the respondent, an advocate, instruction fees of Kshs.4,000,000.00 in a judicial review matter concerning a SONU election at Kenyatta National Hospital Campus, and allowed the respondent's application for enforcement of the certificate of taxation. The Taxing Master had enhanced the minimum instruction fee of Kshs.100,000.00 under Schedule 6A of the Advocates (Remuneration) Order 2014 to Kshs.4,000,000.00, citing the importance of the matter to the respondent as an elected student leader and the public limelight attached to the office. The Court of Appeal, composed of Musinga, Nambuye and Mohammed, JJA, identified a single issue: whether the Judge erred in affirming the Taxing Master's certificate. Applying the settled principle that a Taxing Master's discretion may be disturbed only on error of principle or manifest excessiveness, the Court independently reassessed the Schedule 6A factors. It agreed the matter was important but not complex or novel, took slightly over a year, and the record was not voluminous. It held Kshs.4,000,000.00 was still on the higher side and substituted an award of Kshs.2,000,000.00, affirming the enforcement order and the interest remedy as scaled down. Each party was ordered to bear its own costs of the appeal. The judgment binds lower courts on the thresholds for interfering with taxation and confirms that an appellate court may scale down an instruction fee it finds excessive without disturbing the enforcement framework.

Questions the Court framed

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

  1. 1.Whether the learned Judge exercised her discretion wrongly and therefore arrived at a wrong decision when she affirmed the taxing officer's certificate of taxation?

Key legal issues

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01

Whether the High Court Judge erred in affirming the Taxing Master's award of instruction fees of Kshs.4,000,000.00

Holding

The appeal partially succeeded: the award was on the higher side and was scaled down to Kshs.2,000,000.00, but the Judge's overall approach was substantially affirmed

Reasoning

The Court reassessed the Schedule 6A factors itself: the matter was of great importance to the parties concerning SONU elections, was not complex and raised no novel issues, took slightly over a year, and the record was not voluminous. On that totality, Kshs.4,000,000.00 was on the higher side and Kshs.2,000,000.00 was an appropriate and fair award. Enforcement and interest were affirmed.

p. 8
02

The parameters for interference with a Taxing Master's discretion

Holding

A Taxing Master exercises judicial discretion which may only be interfered with on demonstration of error of principle or manifest excessiveness amounting to error of principle

Reasoning

The Court endorsed the settled thresholds from First American Bank, Joreth Ltd and Kipkorir, Tito & Kiara: the Taxing Master's discretion is judicial and should not be disturbed on reference or appeal unless founded on an error of principle, capricious exercise, or an amount so manifestly excessive as to infer error of principle.

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Enforcement of the certificate of taxation

Holding

The enforcement order granted by the Judge was affirmed, subject to the scaled-down award

Reasoning

The appellants offered no reasons for opposing enforcement; the Court found no basis to decline to affirm the enforcement order and the interest remedy, adjusting only the quantum downward.

p. 9

Legal principles established

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  • On a reference from taxation, a Judge will not interfere with the Taxing Officer's discretion unless the Taxing Officer erred in principle in assessing the costs
  • Where the subject matter value is not ascertainable from pleadings, judgment or settlement, the taxing officer may exercise discretion to assess instruction fee considering the nature and importance of the matter and other relevant circumstances

Court orders

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  1. 1.Appeal partially succeeds; order of the Judge affirming the Taxing Master's award of instruction fees of Kshs.4,000,000.00 set aside and substituted with an award of Kshs.2,000,000.00
  2. 2.Order for enforcement granted by the Judge affirmed subject to scaling down of costs to Kshs.2,000,000.00
  3. 3.Remedy on interest on costs awarded effective the date of taxation affirmed
  4. 4.Each party shall bear its own costs of the appeal

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
Nairobi J.R Misc Application No. 226 of 2016
Jurisdiction invoked
First appeal to the Court of Appeal under section 72 of the Civil Procedure Act as read with the Appellate Jurisdiction Act

Relief refused

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Total reversal of the Judge's findings on the taxed costs and the enforcement order

No reasons were proffered by the appellants for opposing the respondent's request for an enforcement order; the Court having scaled down the fees, found no basis to decline to affirm enforcement

p. 9

Costs

Each party shall bear its 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 appeal partially succeeds. We set aside the order of the Judge affirming the Taxing Master's award of instruction fees in the sum of Kshs.4,000,000.00 and substitute it with an award of Kshs.2,000,000.00.
p. 9disposition - substitution of instruction fees award
Each party shall bear its own costs of the appeal.
p. 9costs order
It is however our view that taking into consideration the totality of what we have assessed above, Kshs.4,000,000.00 was still on the higher side. We believe a sum of Kshs.2,000,000.00 would be not only appropriate but also a fair award as assessed instruction fees in the circumstances.
p. 8assessment of instruction fees
the Judge will not normally interfere with the exercise of discretion by the Taxing Officer unless the Taxing Officer, erred in principle in assessing the costs.
p. 6threshold for interference with taxation

Issues in the judgment

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minor

Judgment inconsistently references Schedule V, Schedule VI, Schedule 6, Schedule 6A and Schedule VII(j) of the Advocates Remuneration Order in referring to the same provision

minor

The judgment does not set out the parties' full names in the title or coram; party names inferred from the record of the underlying litigation

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "University of Nairobi & another v Moses (Civil Appeal 119 of 2020) [2022] KECA 45 (KLR)", Case Analysis (2022). Nairobi Civil Appeal No. E202 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/45/eng@2022-02-04

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