Swanya t/a Swanya & Co Advocates v Nairobi City County (Commercial Case
E521 of 2024) [2025] KEHC 830 (KLR) (Commercial and Tax) (31 January 2025) (Ruling)
Neutral citation: [2025] KEHC 830 (KLR)
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI (MILIMANI COMMERCIAL COURTS)
COMMERCIAL AND TAX
COMMERCIAL CASE E521 OF 2024
BM MUSYOKI, J
JANUARY 31, 2025
BETWEEN
VICTOR OGETO SWANYA T/A SWANYA & CO ADVOCATES ........ PLAINTIFF
AND
NAIROBI CITY COUNTY .................................................................... DEFENDANT
RULING
1. The plainti, a rm of advocates has brought a notice of motion dated 12th September 2024 which
seeks two orders viz:
1. The court be pleased to enter summary judgment against the defendant as prayed on the plaint.
2. The defendant do bear the costs of both the suit and the application.
2. The grounds upon which the application is based are on the face of the same which are basically and in
summary that the defendant retained the plainti to oer legal services in Nairobi Environment and
Land case number 08 of 2022 at legal fees of Kshs 325,310,200.00 out of which the defendant paid
a sum of Kshs 14,009,160.00 leaving a balance of Kshs 311,301,040.00 which is the amount claimed
in the plaint.
3. The facts of the case are that the defendant engaged the plainti to represent it in Nairobi ELC
number 08 of 2021 which instructions the plainti accepted and executed to nality with a judgment
being rendered in favour of the defendant. The plainti had raised a feed note of a sum of Kshs
1,178,408,748.28 but upon negotiations, it revised it to Kshs 325,310,200.00. The defendant agreed to
pay the legal fees as per the revised fee note. Based on this understanding, the defendant sought to settle
the fees and initiated payment of part of it being Kshs 85,000,000.00 for which they sought approval
of the Controller of Budget which approval was granted. The defendant did not pay this sum despite
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receiving approval for the Controller of Budget. Instead, it paid the aforesaid Kshs 14,009,160.00
which according to it, was the amount payable as per the Advocates Remuneration Order.
4. Upon entry of appearance by the defendant and before the defence was led, the plainti led the
notice of motion which is supported by adavit of Victor Swanya Ogeto sworn on 12th September
2024. The plainti depones that upon accepting the defendant’s instructions, it in good faith
proceeded to defend it in the ELC case. The letter of instructions dated 3-03-2022 has been exhibited
as annexure VSO-1. The plainti has annexed a letter to the Controller of Budget dated 30-06-2023 in
which the defendant sought approval for payment to the plainti of Kshs 85,000,000.00 among others.
The Controller of Budget approved the payment vide her letter dated 30-06-2023 but the defendant
did not pay the approved sum.
5. When the plainti followed up the matter which included complaint to the Controller of Budget, the
defendant claimed through its letter dated 24-05-2023 that the payment had been processed but it was
time barred by the closure of the system as the nancial year had come to an end. In proof of this, the
plainti has exhibited letter dated 22-05-2024 from the Controller of Budget to the defendant and the
defendant’s letter dated 24-05-2023 to the Controller of Budget. The defendant also went ahead and
promised the Controller of Budget that the Kshs 85,000,000.00 will be paid within seven days after its
supplementary budget was uploaded. By a letter dated 26-04-2023, the defendant sought to revise the
agreed fees to Kshs 14,009,160.00 which the plainti rejected. Nevertheless, the defendant went ahead
and paid the said Kshs 14,009,160.00. On this background, the plainti avers that the defendant does
not have a plausible defence and seeks entry of judgement as prayed in its plaint.
6. The defendant opposed the application through a replying adavit sworn by Wasonga S. Ogola on
30-09-2024. Mr. Ogola depones that the defendant has a water tight case against the plainti’s claim.
He adds that entering summary judgement at this stage would amount to condemning the defendant
unheard and avoiding just and fair trial of the matter and that the plainti is employing short cuts in
litigation. Lastly, the defendant avers that the application is incompetent and bad in law since there
cannot be summary judgment against the government.
7. The application was argued by way of written submissions. The plainti led submissions dated
9th October 2024 while the defendant led its submissions dated 5th November 2024. The plainti
in addition led supplementary submissions dated 6th November 2024. I have read through the
submissions, adavits of the parties and annexures thereto. It is my considered opinion that the
following are the issue for determination in this application;
a. Whether there was a valid contract between the parties.
b. Whether there can be a summary judgment against the defendant.
c. Whether the amount claimed is due and truly owing to the plainti.
8. The defendant has not said much about the existence of the contract save that the legal fees agreement
was made by an unauthorised person hence null and void and that the plainti should have gone for
taxation instead of ling the suit. I have looked at the correspondence exchanged between the parties
and I do hold that there was a consensus on the amount to be paid to the plainti although there was
no formal agreement drawn and signed. The conduct of the parties especially the act by the defendant
of initiating the process of paying part of the legal fees by seeking approval from the Controller of
Budget is a clear testament that there was a meeting of the minds on the issue.
9. Section 45 of the Advocates Act allows an advocate and his client to agree on the fees payable outside the
scale provided in the Advocates Remuneration Order. Where such scenarios obtain, the advocate does
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not need to le an application for taxation and can bring a suit based on the contract between him and
the client. In this case, it was not necessary or mandatory for the plainti to le a bill of costs as there was
an agreement between the parties. Taxation comes in only where there is no agreement entered or where
the same is a nullity or illegal. No material has been placed before me, which would convince me that
there was anything illegal or unlawful about the agreement. The fact that the defendant unilaterally
decided to renege on the agreement by stating that the fees was excessive does not make the agreement
illegal.
10. The Advocates Remuneration Order is meant to make provisions for guidance on the minimum fees
chargeable for various services. There is nothing that stops parties from making an agreement providing
for payment of legal fees above the minimum provided in the Advocates Remuneration Order. To the
contrary, it is illegal for an advocate to charge fees below the minimum provided in the Advocates
Remuneration Order. In view of the above, it is my nding that there was a valid contract between the
plainti and the defendant for provision of legal services at Kshs 325,310,200.00.
11. The second issue is whether summary judgement can be entered against the defendant. There is no
dispute that the defendant is a County Government established under Article 176 of the Constitution
as read together with Article 6(1) and the First Schedule to the Constitution. Order 36 Rule 3(2)
provides that ‘no application under Rule 1 shall be made against the Government.’ The application
referred to in this Rule is application for summary judgement just as in the application herein.
12. The defendant has submitted that it is a government and as such, it is protected from orders of
summary judgment by the aforesaid Rule. The plainti submitted that the government referred to in
the Rule is the national government and not a county government. According to the plainti, the Rule
was passed before the county governments were established and in the circumstances, the Rule could
not have been making any reference to the county governments.
13. Section 3 of the Interpretation and General Provisions Act denes the government to mean ‘the
Government of Kenya’. In that case, are the county governments part of the Government of Kenya.
The county governments are established under the Constitution as devolved units of government.
They are part of the system of governance in the country which is meant to decentralise resources,
power and functions for better management and service delivery to the people and to give the people
of Kenya more avenues, say and right to participate in the exercise of powers of the state. That is the
purport of Article 174 of the Constitution specically Sub-Article (c). In my view, with that, there is
no way the county governments can be removed or separated from the system and denition of the
government of Kenya. They are part of the government of Kenya and as such they are covered under
Order 36 Rule 3(2) of the Civil Procedure Rules.
14. The Rule does not dierentiate between a county and national government. The intricacies of running
a government and management of government aairs calls for collaborative eorts from all the levels
of government. The argument by the applicant that the Rule could not be referring to county
governments because it was legislated before the county governments were established does not hold
water. The Civil Procedure Rules have undergone several amendments since the coming into force of
the current Constitution. If the Rules Committee intended to remove the county governments from
the cover of the Rule, it would have expressly indicated so through amendments.
15. The special protection given to the government in various litigation processes may appear to be unfair
to litigants but that is the law and this court being a court of law has no alternative but to follow the
dictates of the law. The applicant has argued that the Rule is an archaic relic which should not be in our
law books today and has cited Absa Bank Kenya PLC vs Kenya Deposit Insurance Corporation (High
Court Commercial case number E411 of 2022); Kenya Bus Service Limited vs Minister for Transport
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& 2 Others (2012) eKLR and Bob Thomson Dickes Ngobi vs Kenya Ports Authority (2017) eKLR. All
these authorities discussed the eect, constitutionality and rationality of various sections of legislation
that give special protection and treatment to the government in matters litigation and execution of
court orders and decrees. Whereas I agree with the sentiments expressed by the judges in these cited
authorities, the best I can do in this matter is to add my voice and state that the laws must be relooked
with a discussion to make intentional amendments and adjustments to reect the modern democratic
realities.
16. I have given due consideration to the cited authorities and noted that none of them declared Order 36
Rule 3(2) of the Civil Procedure Rules unconstitutional or inoperative. Until the law is either repealed
or declared unconstitutional, it remains the law and has to be followed. The plainti in this matter
has not invited this court to declare Order 36(3)(2) of the Civil Procedure Rules unconstitutional or
inoperative and even if it had done so, I would have been reluctant in making a nding to that eect in
these proceedings. In my considered view, for the court to declare a law unconstitutional, the relevant
government and legislative bodies and oces must be involved in the discussion and the same must
be done in the right forum and not a private suit like this one. For the court to reach an informed
decision on constitutionality of a legislation, the court must receive presentations from the parties
and any interested party including the bodies responsible for legislating the instrument in question.
There could be a historical or operational justication for such enactment and the court would be
called upon to interrogate the rationality or otherwise of the provisions. In Council of Governors vs
Attorney General & Independent Electoral and Boundaries Commission (2017) KEHC 6395 (KLR)
Justice Chacha Mwita and Justice (as he then was) John Mativo stated as follows;
‘A law which violates the constitution is void. In such cases, the Court has to examine as
to what factors the court should weigh while determining the constitutionality of a statute.
The court should examine the provisions of the statute in light of the provisions of the
Constitution. When the constitutionality of a law is challenged on grounds that it infringes
the constitution, what the court has to consider is the “direct and inevitable eect” of such
law. Further, in order to examine the constitutionality or otherwise of statute or any of
its provisions, one of the most relevant consideration is the object and reasons as well as
legislative history of the statute. This would help the court in arriving at a more objective
and justiable approach.
Thus, the history behind the enactment in question should be borne in mind. Thus any
interpretation of these provisions should bear in mind the history, the desires and aspirations
of the Kenyans on whom the Constitution vests the sovereign power, bearing in mind that
sovereign power is only delegated to the institutions which exercise it and that the said
institutions which include Parliament, the national executive and executive structures in the
county governments, and the judiciary must exercise this power only in accordance with the
Constitution.’
17. The plainti has also submitted that the Rule is in violation to and limits the right of access to justice
as enshrined in Article 48 of the Constitution. As much as there is some limit to litigants in form of
forcing parties to follow a longer and inconveniencing route while litigating with the government, the
litigants are not left without a remedy. Article 25 of the Constitution provides for rights which cannot
be limited and the right to access justice is not among the four listed. This of course not to say that
any person should be denied access to justice. The plainti is rightly before a court of law and its door
to litigation and fair hearing has not been locked by the mere fact that the law prohibits summary
judgement against the government.
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18. The third issue is whether the money is due and truly owing to the plainti. Answering this issue
will amount to discussing the merits or lack of it of the defendant’s defence and may result to the
court giving orders for summary judgment which will obviously go against my earlier holding that the
defendant is covered from summary judgment under Order 36 Rule 3(2) of the Civil Procedure Rules.
19. In the end I nd that the application dated 12th September 2024 is incompetent pursuant to Order 36
Rule 3(2) of the Civil Procedure Rules and I hereby dismiss it with no orders as to costs.
DATED SIGNED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JANUARY 2025.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT.
Ruling delivered in presence of Mr. Ojiambo for the plainti and Mr. Waweru for the defendant.
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