At the heart of the right to access justice is the right to legal representation. The lawyers’ role in the legal process therefore cannot be understated. Lawyers deserve to be compensated for their work because the practice of law is a career just like any other. However, Wanjiku should have the comfort of knowing that she can access justice and hire lawyers just as easily as anyone else. There is therefore need to maintain a delicate balance between these competing interests; the right to access to justice and fair remuneration of lawyers.

The recent judgment by the Supreme Court in Kenya Airports Authority (KAA) v Otieno Ragot & Company Advocates sheds light on these competing interests. The decision raises several issues surrounding the interplay between the proper interpretation of the provisions of Schedule VI Part A and B of the Advocates Remuneration Order, 2014 (the ARO) and the powers and judicial discretion conferred upon Taxing Officers in assessing due fees to lawyers.

The apex court has now clarified, with finality, that the Taxing Officer has wide discretion especially where the legal fees claimed by lawyers are exorbitant, unreasonable and based on claims whose value has not been ascertained. The Court held that the assessment of advocate-client costs is not just an arithmetical exercise once the party and party costs have been determined. The court has therefore underscored the requirement for the Taxing Officer to sufficiently consider the costs sought by lawyers and be satisfied that they are a true representation of the actual work done. Evidently, the decision breathes life into the court’s role in intervening to safeguard the overarching principle that lawyers’ costs must be commensurate to the work done to preclude Advocates’ exorbitant fees to the detriment of the clients.

Further, the court’s finding has enhanced public confidence in taking up legal representation since it mitigates the risk of clients being burdened with excessive legal costs which are not commensurate with work done by lawyers and are anchored on unverified and unascertainable figures set out in pleadings. As such, the judgment has enhanced the right of access to justice to all persons by removing impediments resulting from unreasonable, unpredictable and unjustifiable litigation fees.

There are huge public policy ramifications attached to the decision. In the decision, the amounts involved would have been paid out of public coffers (KAA) had the Court of Appeal’s assessment of the advocate-client costs due remained undisturbed. Article 201 (d) of the Constitution requires that public money shall be used in a prudent and responsible way. As such, taxpayers would have been rendered to pay approximately Kes. 200 Million in legal fees paid for services which were not commensurate to the actual work rendered by the lawyers, as found by the Supreme Court.

In respect of the proper interpretation of the term subject value, the apex court has clarified that the mere mention of a figure in pleadings, without more, cannot be a proper basis for determining the subject matter value. The effect of the judgment is that where an assessment of costs is done based on unsubstantiated figures, such assessment does not prevent the taxing officer from exercising judicial discretion and inquiring whether the claimed fees is indeed representative of the value of the subject matter and the services rendered by the Advocate for purposes of ascertaining fees.

More significantly, the decision has upheld the premise that whereas lawyers should be well remunerated, public interest dictates that legal costs should be kept to a reasonable level so that justice is not put beyond the reach of poor litigants. At the end of the day, the true winner is Wanjiku since the judgment has made her path to accessing justice much clearer and cost manageable.

The article was  published in the Business Daily on 14 August 2024 and can be accessed here.