Mumba & 7 others (Sued on Their Own Behalf and on Behalf of the Predecessors &/or Successors in Title in Their Capacities as the Registered Trustees of the Kenya Ports Authority Pension Scheme) v Munyao & 148 others (Suing on Their Own Behalf and on Behalf of the Plaintiffs and & Other Members/Beneficiaries of The Kenya Ports Authority Pension Scheme) (Civil Appeal (Application) 38 of 2014) [2026] KECA 621 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that legal fees are based on the judgment amount, and lawyers get paid even if a court later lacks jurisdiction.
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 Taxing Officer was in error in principle in determining the value of the subject matter as Kshs.201,981,424.50
- 2.Whether the Supreme Court decision setting aside the lower court judgments for want of jurisdiction rendered the subject matter incapable of valuation for purposes of taxation
- 3.Whether the award of advocate–client uplift, getting-up fees, VAT and taxation fees were justified
- 4.Whether this Court should interfere with the taxation or remit the Bill for re-taxation
Key legal issues
#Ascertainment of the value of the subject matter for instruction fees
The decretal sum of Kshs.201,981,424.50, not the pleaded fraud figure of Kshs.6,982,340,602, is the correct value of the subject matter; the Taxing Officer applied the correct principles.
Under Schedule 6 Part A of the Advocates Remuneration Order and Joreth Ltd v Kigano & Associates, value is ascertained from the pleadings, judgment or settlement. Once judgment is entered, the judgment conclusively determines the subject matter's value. Judgment was entered in the decretal sum, not the speculative fraud figure, so the Taxing Officer rightly based instruction fees on Kshs.201,981,424.50.
Effect of the Supreme Court's jurisdictional nullification on the subject matter
The setting aside of the judgments for want of jurisdiction did not render the subject matter incapable of valuation or the services valueless.
The Advocates rendered legal services by drawing and lodging the Notice of Appeal, Memorandum and Record of Appeal, and the jurisdictional issue was itself a substantive ground in the appeal. The Client was the sole beneficiary of those services; the Advocates are entitled to fees for services rendered before and notwithstanding the jurisdictional finding.
Advocate–client uplift, getting-up fees, VAT and taxation fee
The 50% uplift and getting-up fees were justified on attendances and correspondence undertaken before the brief was withdrawn, and VAT and the statutory taxation fee were strictly drawn in accordance with the law.
Although the Advocates did not prosecute the appeal to hearing, instruction fees were earned for substantive steps taken in preparation and filing of the Record of Appeal. The Taxing Officer gave reasons for allowing preparatory costs, and no error of principle was shown in the uplift, getting-up fees, VAT or taxation fee.
Legal principles established
#- Once judgment has been entered, the value of the subject matter for taxation of instruction fees is determined from the judgment, not the pleadings.
- A single Judge on a reference will not interfere with a Taxing Officer's discretion absent an error in principle.
- A subsequent finding that courts lacked jurisdiction does not render legal services already rendered valueless for advocate–client costs.
Court orders
#- 1.Both the Advocates' Reference dated 26th July 2023 and the Client's Reference dated 3rd August 2023 are dismissed
- 2.Each party to bear their own costs of the references
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Taxing Officer (Deputy Registrar, Nairobi)
- Advocate–Client Bill of Costs dated 15th June 2020
- Jurisdiction invoked
- Rule 117(3) of the Court of Appeal Rules (reference from taxation before a single Judge)
Relief refused
#Advocates' prayer to assess instruction fees on Kshs.6,982,340,602 yielding instruction fees of Kshs.87,503,257, advocate–client uplift, VAT and total of Kshs.100,173,278.58
Judgment was entered in the decretal sum of Kshs.201,981,424.50, not the pleaded fraud figure; the decretal amount is the true value of the subject matter and no error of principle was demonstrated.
Client's prayer that the Bill be taxed at Kshs.50,000 or remitted for re-taxation
The Supreme Court's finding of want of jurisdiction did not render the legal services valueless, and the Taxing Officer properly directed herself on the law.
Costs
Since both the reference and cross reference have failed each party to bear their own costs.
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.
In sum, both References are dismissed with costs. Since both the reference and cross reference have failed each party to bear their own costs. It is so ordered.
I find that the correct principles were invoked, and the decretal sum rightly applied as the subject matter on which to compute instruction fees, and as a consequence I have no reason to interfere with the Taxing oficer's decision.
It is also not open to the taxing oficer to choose one or the other or to use them in combination, the provision being expressly disjunctive as opposed to conjunctive. It is also mandatory and not permissive.
The subsequent finding that the courts lacked jurisdiction did not render the legal work undertaken as valueless for purposes of the Advocate–Client costs.
Issues in the judgment
#The Supreme Court decision is referred to inconsistently as Petition No. 3 of 2018 and Petition No. 3 of 2016
The VAT amount allowed by the Taxing Officer is stated as Kshs. 757,839.88 in the narrative but counsel for the Client submitted it as Kshs. 756,579.88
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mumba & 7 others (Sued on Their Own Behalf and on Behalf of the Predecessors &/or Successors in Title in Their Capacities as the Registered Trustees of the Kenya Ports Authority Pension Scheme) v Munyao & 148 others (Suing on Their Own Behalf and on Behalf of the Plaintiffs and & Other Members/Beneficiaries of The Kenya Ports Authority Pension Scheme) (Civil Appeal (Application) 38 of 2014) [2026] KECA 621 (KLR)", Case Analysis (2026). Second References from the Advocate–Client Bill of Costs dated 15th June 2020 (Advocates' Reference dated 26th July 2023 and Client's Reference dated 3rd August 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/621/eng@2026-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.