City lawyer Donald Kipkorir is set to be paid Sh1.3 billion, one of the highest legal fees awarded in the country’s litigation history, for defending the Nairobi County government against the Ministry of Defence in a case involving the parcel of land where Embakasi Barracks stands.
The Environment and Land Court ruled last week that Mr Kipkorir should be paid Sh1.338 billion for representing the defunct city council in the case that was in court for close to 10 years.
The 3,000-acre land valued at Sh61.5 billion was forcibly taken over by the Kenya Defence Forces, triggering the suit in 2012. But the matter was withdrawn in June last year, without the involvement of Mr Kipkorir.
Deputy registrar of the court Diana Orago considered the numerous court appearances, court filings and the value of the land in deciding the amount to be paid.
The county government had opposed the amount, claiming that Mr Kipkorir’s law firm, KTK Advocates had an agreement with city hall to be paid Sh400 million plus VAT. But Ms Orago rejected the claim, saying there was no proof that the amount had been agreed upon.
“It is moreover quite unfortunate that no proof has been tendered to this court to show that there existed a retainer agreement between the parties other than an unsigned letter allegedly from the applicant firm,” Ms Orago said.
The court noted that the Advocates (Remuneration) Order provides the minimum amount and in calculating the amount, it has the option of increasing the fees but not going below what has been stated as the minimum.
Previous rulings emphasise on the value of the subject matter and the instruction fees while taking into account the nature and importance of the case, the interest of the parties, the general conduct of the proceedings and direction of the trial court, among others.
Filings in court showed that Mr Kipkorir asked for instructions fees of Sh1.23 billion and Sh410 million for ‘getting up fees’ or costs incurred for the preparation of the case.
Other issues considered were writing hundreds of letters and notices, to and from the Attorney-General and other law firms, drawing affidavits, filing the court documents and getting hearing notices.
The lawyer also brought to the attention of the magistrate court appearances for mentions and hearings, all totalling to Sh1.6 billion and VAT.
Mr Kipkorir had asked to be paid a total of Sh2.8 billion but the magistrate reduced the amount to Sh1.338 billion.
The county government had claimed in its defence that the law firm had initially agreed to discount the fee by 73.9 percent to bring it to Sh400 million plus VAT. The fee was to be allegedly paid in two instalments but Mr Kipkorir denied the claims.
The county further claimed that Mr Kipkorir abandoned the case, forcing it to hire another law firm, which concluded the case.
Ms Orago then awarded Sh768 million to the law firm as instruction fees and calculated ‘getting up fees’ at 75 percent of the instructions fees (Sh384.4 million). The taxing master also taxed all attendance to court on a lower scale. She also charged VAT of Sh184.5 million, bringing the amount to Sh1.338 billion.
Previous decisions have always stated that the basis for determining the subject matter value for purposes of instruction fees is wholly dependent on the stage at which the fees are being determined.
The magistrate said she was guided by previous cases where the court ruled that taxation of bill of costs is based largely on evidence and that it requires an applicant to present all documents and materials to support a claim.
