For years, one number dominated the legal battle between Prof Tom Ojienda & Associates and Nairobi City County: KSh20 billion.
The prominent law firm argued that because it successfully defended the county in a constitutional petition touching on billions of shillings in public revenue, it deserved nearly KSh90 million in instruction fees.
But Kenya’s Court of Appeal has now firmly shut that door.
In a judgment that could reshape how advocates’ fees are assessed in constitutional litigation, the appellate court ruled that the case was never about recovering or protecting KSh20 billion.
Instead, it was about whether Nairobi City County had complied with constitutional rules governing the collection and spending of public money.
That distinction, the judges held, meant the firm’s instruction fee would remain at KSh1 million, not the KSh89.9 million it had claimed.
The Dispute
The unanimous decision by Justices Kathurima M’Inoti, Enock Chacha Mwita and Byram Ongaya brings to an end a lengthy dispute over legal fees that began after Prof Tom Ojienda & Associates successfully represented Nairobi City County in a constitutional petition filed in 2015.
The petition, brought by businessman Ben Mutura, accused the county of violating the Constitution and the Public Finance Management Act by allegedly failing to channel all revenue into the County Revenue Fund before spending it.
The petitioner also sought conservatory orders stopping the county from spending revenue at source and asked the court to compel investigations into the alleged misuse of public funds.
The county ultimately defeated the petition.
That victory, however, marked the beginning of an equally hard-fought battle over legal fees.
In April 2017, Prof Tom Ojienda & Associates presented Nairobi City County with an Advocate-Client Bill of Costs amounting to KSh156.8 million, including KSh89.91 million claimed as instruction fees.
The firm argued that the petition revolved around approximately KSh20 billion in county revenue, making it a matter of exceptional financial importance deserving correspondingly high legal fees.
Fee Fight
The Taxing Master was unconvinced.
After considering objections raised by Nairobi City County, the Taxing Master reduced the entire bill to KSh1.97 million, awarding only KSh1 million as instruction fees.
The law firm challenged that decision before the High Court, arguing that the constitutional petition involved complex legal questions requiring extensive legal research, detailed analysis of county financial records, and interpretation of constitutional provisions governing public finance.
It also maintained that the Advocates Remuneration Order merely sets minimum fees and that taxing officers must consider other factors, including the value and importance of the dispute, before assessing instruction fees.
Justice Mativo, as he then was, dismissed the challenge.
He found that the petition did not raise unusually complex or novel constitutional issues and held that the Taxing Master had exercised her discretion properly.
Still dissatisfied, the law firm moved to the Court of Appeal.
Court’s Reasoning
The appeal turned on a single question with enormous financial consequences.
What exactly was the subject matter of the constitutional petition?
The judges said that question could not be answered simply by pointing to the amount of public money mentioned in court documents.
Instead, they reaffirmed the long-standing legal principle that the value of a case must be ascertainable from the pleadings, judgement, or settlement.
Where no specific monetary value can be identified, a taxing officer is entitled to exercise discretion after considering the nature of the case, its importance, the parties’ interests and all other relevant circumstances.
Applying that principle, the court rejected the firm’s argument that the subject matter was worth KSh20 billion.
The judges found that the constitutional petition did not seek recovery or protection of KSh20 billion.
Rather, it sought judicial interpretation of whether Nairobi City County had complied with Articles 201 and 207 of the Constitution and the Public Finance Management Act when collecting and spending public revenue.
That distinction proved decisive.
The court reasoned that constitutional and public law cases are fundamentally different from commercial disputes because they primarily determine legality and constitutional accountability rather than ownership of money.
Lasting Impact
In reaching its decision, the Court of Appeal relied on established authorities governing taxation of legal costs.
It cited the landmark Premchand Raichand Ltd v Quarry Services of East Africa Ltd, which held that legal costs must remain reasonable, fairly compensate successful litigants, and avoid making justice unaffordable.
The judges also relied on the Supreme Court’s decision in Kenya Airports Authority v Otieno Ragot & Company Advocates, which emphasised that advocates’ fees must always remain reasonable and should be determined on the unique circumstances of each case.
The appellate judges further reiterated that courts rarely interfere with a Taxing Master’s discretion unless there is a clear error of principle or an award so unreasonable that it results in injustice.
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Finding neither error nor injustice, the court dismissed the appeal.
The decision leaves intact the award of KSh1 million in instruction fees and a total taxed Advocate-Client Bill of approximately KSh1.97 million.
More importantly, it reinforces a growing judicial principle that constitutional litigation cannot automatically attract commercial-scale legal fees merely because it concerns billions of shillings in public resources.
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