A law firm associated with Kisumu Senator Tom Ojienda has secured a relief in its fight with Mumias Sugar Company over the advocate's fee payable for legal services rendered 12 years ago in a Sh899 million dispute.
This is after the High Court ordered a third fresh assessment of the fees following contradictory decisions by two magistrates, where one found the advocate's fee to be Sh27 million while another found it to be Sh429,000.
The law firm, Prof Tom Ojienda & Associates, acted for the company at the Sugar Arbitration Tribunal in a dispute involving a sum of Sh899.4 million between the Kenya Sugarcane Growers Association and the milling company in 2012.
The law firm filed its advocate/client bill of costs in March 2017, and the presiding magistrate, Pauline Mbulikah, assessed the advocate's fee as Sh27.3 million.
The sugar miller was dissatisfied with the assessments and challenged the same at the High Court, where Justice Fred Ochieng (now judge of the Court of Appeal) reversed the magistrate's decision and ordered another taxation of the bill.
In April 2019, the law firm filed an amended bill of costs seeking a sum of Sh40 million based on the value of the subject matter.
The bill was assessed by magistrate Lina Akoth at Sh429,780 in a ruling dated November 30, 2020.
The law firm was disappointed with the decision and approached the High Court seeking to challenge and set aside Ms Akoth’s assessment.
It argued that the magistrate erred in law by failing to take into account the value of the subject matter, which it said was ascertainable from the pleadings, being Sh899,462,085. The application was supported by an affidavit of Prof Ojienda.
It added that the magistrate fell into error in finding that the law firm did not incur any expenses in the prosecution of the matter, hence it was not entitled to disbursements.
The court directed that the case be mentioned before a magistrate on August 15, 2025, for purposes of taking further directions.
The company had opposed the application, saying that the bill had been properly assessed.
Justice Joe Omindo ruled that Magistrate Akoth erred in principle in holding that the value of the subject matter could not be ascertained from the pleadings, yet it had been shown to be Sh899.4 million.
"I order that the bill of costs be remitted to a Taxing Master, other than Hon. P.W. Mbulikah and Hon. L. Akoth, for purposes of determining the instruction fees, which will then inform what the total amount due to the Advocate/Applicant will be," said Justice Omindo.
About disbursements, the judge said he was of the same persuasion that a party who claims disbursements must prove that he disbursed or expended the monies claimed.
"The Applicant (the law firm) did not prove the disbursements claimed by way of receipts or other admissible documents. I therefore reach the finding that, albeit for different reasons, the Taxing Master reached the correct findings that disbursements are not payable," said Justice Omindo.
The court directed that the case be mentioned before a magistrate on August 15, 2025, for purposes of taking further directions.
