University of Nairobi & another v Moses (Civil Appeal 119 of 2020) [2022] KECA 45 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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
#Whether the High Court Judge erred in affirming the Taxing Master's award of instruction fees of Kshs.4,000,000.00
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
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.
The parameters for interference with a Taxing Master's discretion
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
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.
Enforcement of the certificate of taxation
The enforcement order granted by the Judge was affirmed, subject to the scaled-down award
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.
Legal principles established
#- 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
#- 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.Order for enforcement granted by the Judge affirmed subject to scaling down of costs to Kshs.2,000,000.00
- 3.Remedy on interest on costs awarded effective the date of taxation affirmed
- 4.Each party shall bear its own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
Costs
Each party shall bear its own costs of the appeal.
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 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.
Each party shall bear its own costs of the appeal.
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.
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.
Issues in the judgment
#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
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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Sanpac Limited v Stanbic Bank Kenya Limited (Civil Appeal (Application) 320 of 2018) [2024] KECA 1765 (KLR)[2024] KECA 1765 (KLR)6 Dec 2024
Cite this brief
#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.