[2016] KEHC 6832 (KLR)
The court held that the 2nd respondent, being represented by its salaried in-house counsel, was not entitled to instruction fees as no external advocate was instructed and the commission was effectively acting in person. Awarding instruction fees in such circumstances would contravene the Advocates Act and could...
Source-derived case information.
- Citation
- [2016] KEHC 6832 (KLR)
- Parties
- Applicant: Job Kipkemei Kilach; Respondent: Director of Public Prosecutions; Respondent: Ethics & Anti-Corruption Commission; Respondent: Attorney General
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Petition 2 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Reference Against Taxation of Costs
- Outcome
- Application partly allowed; instruction fees set aside; other costs upheld.
- Judges
- K Kimondo
- Legal Topics
- Taxation of Costs, Instruction Fees, In House Counsel, Advocates Act Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Job Kipkemei Kilach
Applicant
Director of Public Prosecutions
Respondent
Ethics & Anti-Corruption Commission
Respondent
Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Reference Against Taxation of Costs
Legal Issues
- 1 Whether in-house counsel of a State corporation is entitled to instruction fees in a party and party bill of costs.
- 2 Whether the taxing master erred in awarding instruction fees to the 2nd respondent's in-house counsel.
Ratio Decidendi
The court held that the 2nd respondent, being represented by its salaried in-house counsel, was not entitled to instruction fees as no external advocate was instructed and the commission was effectively acting in person. Awarding instruction fees in such circumstances would contravene the Advocates Act and could result in unlawful sharing of legal fees. The court set aside the award of Kshs 100,000 as instruction fees, upholding only the uncontested items in the bill of costs. The petitioner was ordered to pay only the remaining costs, and each party was to bear its own costs for the motion.
Court Disposition
Application partly allowed; instruction fees set aside; other costs upheld.
Orders
- The award of Kshs 100,000 as instruction fees to the 2nd respondent is set aside.
- The petitioner shall pay costs in the sum of Kshs 105,598 to the 2nd respondent.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
PETITION NO. 2 OF 2013
JOB KIPKEMEI KILACH…………………………………....………….…..PETITIONER
VERSUS
THE DIRECTOR OF PUBLIC PROSECUTIONS………….....….....1ST RESPONDENT
THE ETHICS & ANTI-CORRUPTION COMMISSION….......……..2ND RESPONDENT
THE ATTORNEY GENERAL..………………………………………3RD RESPONDENT
RULING
The main petition was dismissed on 18th June 2014. The respondents were awarded costs. The 2nd respondent filed a party and party bill of costs on 4th February 2015. On 27th October 2015, the taxing master of this court assessed the bill at Kshs 205, 598 to be paid by the petitioner.
The petitioner is aggrieved by the award of instruction fees to the 2nd respondent in the sum of Kshs 100,000. The petitioner has filed a notice of motion dated 10th November 2015. He prays that the 2nd respondent’s bill of costs be “quashed or re-taxed”.
The point taken is that learned counsel for the 2nd petitioner is under full time employment of the commission. As in-house counsel of a State corporation, she is not entitled to instruction fees. The petitioner submitted that it would amount to sharing legal fees with an unqualified person contrary to the Advocates Act. Those matters are buttressed by a deposition of the petitioner sworn on 10th November 2015.
The application is contested. The 2nd respondent has lodged grounds of opposition dated 24th November 2015. In a nutshell, the respondent contends that it was awarded costs by the superior court; that the application is misconceived and incompetent; that the taxing master exercised her discretion judiciously; and, that the motion is a ploy to sit on appeal against the decision of the High Court of 18th June 2014.
On 4th February 2016, the learned counsels for both parties made brief oral submissions. I have considered the notice of motion, deposition, grounds of opposition and the rival submissions.
The petitioner requested for reasons of the taxation on 2nd November 2015. The motion was presented on 10th November 2016. Rule 11 of the Advocates (Remuneration) Order requires that a reference be made within 14 days of the decision or 14 days of receipt of the reasons for taxation. I am satisfied that the motion for review was presented within the prescribed time.
The narrow and key question for determination is whether the taxing master erred by awarding instruction fees to in-house counsel. All the other items in the bill of costs are not challenged. Learned counsel for the petitioner Mr. Chebii confirmed as much. It is not contested that Mr. Olola and Mrs. Christine Natome are in-house counsel for the 2nd respondent. They represented the commission in the petition. The High Court awarded costs to the 2nd respondent. The 2nd respondent was entitled to be represented by counsel. And, there was no bar to Mr. Olola or Mrs. Natome from doing so.
However, instruction fees are meant to compensate a party for expenses paid to his advocate. In this case, the commission did not instruct external lawyers: it utilized the services of its salaried employees. The documents filed by the lawyers were not drawn in the names of a professional firm but in the name of the commission. See section 39 of the Advocates Act. The commission thus fell in the genre of a party acting in person. The other danger is that the instruction fees may end up in the pocket of the 2nd respondent; and, raise the specter of sharing fees with an unqualified person in violation of sections 41 and 43 of the Advocates Act. I thus readily find that it was not entitled to the item of instruction fees of Kshs 100,000. See Commissioner of Lands v Odinga [1972] E.A 125.
In a synopsis, the 2nd respondent was only entitled to the disbursements and other costs other than instruction fees. I accordingly review the decision of the taxing master dated 27th October 2015. I set aside the award of Kshs 100,000 being instruction fees. All the other items in the certificate of costs were not challenged and are accordingly upheld. The upshot is that the petitioner shall only pay costs in the sum of Kshs 105,598 to the 2nd respondent. In the interests of justice, each party shall bear its own costs of this motion.
It is so ordered.
DATED, SIGNEDandDELIVEREDat ELDORETthis 25th day of February 2016
GEORGE KANYI KIMONDO
JUDGE
Ruling read in open court in the presence of-
No appearance for the petitioner/applicant.
Mrs. Natome for the 2nd respondent instructed by the Ethics & Anti-Corruption Commission.
Mr J. Kemboi, Court clerk.