Court upholds lawyer’s Sh498 million fees in tax case against Nairobi County
The dispute stemmed from legal services rendered in Nairobi RMCC No. 2 of 2003, where the advocate was initially instructed by the then City Council of Nairobi to recover contribution in lieu of rates from the Commissioner of Lands.
The High Court in Nairobi has dismissed a bid by the Nairobi City County to set aside a 2012 taxation ruling that awarded an advocate nearly half a billion shillings in legal fees.
Justice Helene Namisi found that the county's challenge lacked merit and upheld a Certificate of Taxation issued in favour of lawyer Samson Masaba of Munikah & Co. Advocates for Sh498.7million
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The dispute stemmed from legal services rendered in Nairobi RMCC No. 2 of 2003, where the advocate was initially instructed by the then City Council of Nairobi to recover contribution in lieu of rates from the Commissioner of Lands.
The case was settled in 2006, after which the advocate successfully taxed a Bill of Costs amounting to Sh60,712,373 in 2007.
The matter, however, took a new twist in July 2007 when the Attorney General introduced a counterclaim of Sh13.3 billion against the council.
The council subsequently issued fresh instructions to Masaba to defend the counterclaim, which was later dismissed with costs.
Following the dismissal, the advocate filed a second Bill of Costs in 2011, culminating in the contested Sh498 million taxation.
The county argued that the Taxing Officer erred by allowing a second Bill of Costs in the same matter, claiming it amounted to double payment.
It relied on a Court of Appeal decision holding that a counterclaim does not result in a separate judgment.
The advocate opposed the application, insisting that the counterclaim was a distinct legal battle that required fresh instructions and substantial work.
He cited precedents affirming that advocates are entitled to separate instruction fees for prosecuting a suit and defending a counterclaim.
Justice Namisi agreed with the advocate, ruling that a counterclaim is in effect a cross-action and that the work involved in defending a multi-billion shilling claim was distinct from the original brief.
The judge also held that the county had failed to demonstrate any error of principle in the taxation.
"The allegation that the Respondent is seeking to be paid twice for the same work is factually incorrect," the judge stated, dismissing the application with costs to the advocate.
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