Prof Tom Ojienda & Associates v Nairobi City County
The bottom line
#Kenya's Court of Appeal upheld a Ksh. 1 million fee award, ruling that public law victories can't be used to justify billion-shilling legal fees.
What this practically means
#Executive summary
#Key legal issues
#Value of the subject matter in public law litigation for instruction fees
The petition did not involve a claim of Ksh. 20,000,000,000.00; the subject matter was the constitutional question of prudent, accountable use of county revenue, and its value could not be pegged to the revenues collected.
The court held that the value of the subject matter must be discerned from the pleadings or judgment. The petition questioned whether the County collected and used revenue in accordance with the Constitution, the County Governments Act and the PFMA. It was not a claim for money, and the outcome would have been the same irrespective of the amount of revenue involved, so the Ksh. 20 billion figure was a mischaracterisation.
Whether the award of instruction fees of Ksh. 1,000,000.00 was inordinately low
No. Against a prescribed minimum of Ksh. 100,000.00 under Schedule 6(1)(j), the award represented a 1000% increase reflecting the nature, importance, complexity and novelty of the petition; it was the appellant's claim that was manifestly excessive.
It was common ground that the minimum instruction fee for an opposed constitutional petition was Ksh. 100,000.00. The taxing officer, taking into account the considerations in the Remuneration Order, awarded ten times that amount. The court found the award adequately explained by the taxing master's findings and rejected the contention that it was inordinately low.
Whether the taxing master's incomplete quotation of Nyangito and failure to consider submissions amounted to material misdirection
Although the taxing master incompletely quoted Nyangito (stating the subject matter does not determine costs rather than that it is one of the factors), the error was not material because the subject matter was in fact considered, and no misdirection of the magnitude required to vitiate the award was shown.
The court acknowledged that Odunga, J.'s holding in Nyangito was that the subject matter is one of the factors, not that it is excluded. Yet both the taxing master and the High Court considered the subject matter. Applying Bank of Uganda v. Banco Arabe Esapanol, interference requires an error that substantially affected quantum and would cause injustice; no such error was discerned here.
Legal principles established
#- An appellate court and the High Court on a reference will not interfere with a taxing master's award unless the decision was based on an error of principle, or the fee is so manifestly excessive or low as to amount to an injustice; even a shown error of principle warrants interference only if it substantially affected the quantum and would cause injustice.
- The value of the subject matter for instruction fees is determined from the pleadings, judgment or settlement; if not ascertainable, the taxing officer may assess a just fee considering the nature and importance of the matter, the interests of the parties and the conduct of proceedings.
- Perceived public-sector earnings do not constitute the subject matter in public law claims such as constitutional petitions and judicial review proceedings; instruction fees in such matters should not be extrapolated from private law practice.
- Not every misdirection by a taxing master results in interference with the discretion; it must be a misdirection that vitiates the award.
Court orders
#- 1.Appeal dismissed with costs to the respondent
- On appeal from
- High Court of Kenya
- Not stated in the judgment (reference from taxation ruling)
- Jurisdiction invoked
- First appellate jurisdiction over the High Court decision on a reference from a taxing master (not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Prof Tom Ojienda & Associates v Nairobi City County", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1612/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.