A High Court judge has overturned a legal fee award against a single mother, ruling that custody proceedings cannot be treated like commercial disputes and warning that high legal costs can undermine access to justice.
Justice Helene Namisi has overturned a Sh389,064 legal fee award against a single mother, ruling that child custody and maintenance cases should not be treated as commercial disputes.
Justice Namisi ruled that legal fees in children’s cases must follow the law and respect constitutional protections, with the child’s best interests taking priority.
“Custody and maintenance proceedings are not commercial disputes; they do not possess an ascertainable pecuniary subject matter in the traditional sense,” the judge ruled.
The court found that the deputy registrar had used the wrong legal scale, awarded fees not allowed in a magistrate’s court and failed to consider the mother’s financial situation, undermining her right to access justice.
The judge said the taxing master had wrongly treated the custody dispute as a high-value commercial case, effectively putting a price on the welfare of children and inflating legal fees.
The mother said she had retained legal representation on a partial pro-bono basis, agreeing to pay an all-inclusive fee of Sh30,000. She ultimately paid Sh40,000 through mobile money instalments.
The lawyer, however, maintained that the parties had entered into a verbal agreement for Sh500,000 in instruction fees alone, citing the complexity and demands of the custody dispute.
The disagreement eventually escalated into a court battle over the amount payable for legal services rendered in a matter that had been resolved through mediation rather than a full trial.
Court records show that the mother filed a child custody and maintenance case at Milimani Chief Magistrate’s Court in Nairobi in 2021.
The advocate filed court documents and represented the mother during the proceedings. The dispute was later settled through court-annexed mediation, resulting in a Parental Responsibility Agreement.
The lawyer later filed a bill of costs on June 21, 2024, seeking Sh956,696 in legal fees from the mother. The bill was placed before Deputy Registrar Margaret Kurumbu, acting as the taxing master, to determine the legal fees payable.
In a December 11, 2024 ruling, the taxing master rejected the advocate’s claim that they had agreed on Sh500,000 in legal fees, saying there was no evidence to support the alleged verbal agreement.
Despite rejecting the alleged agreement, the taxing master awarded the advocate Sh200,000 in instruction fees. After deducting the Sh40,000 the mother had already paid, the balance was set at Sh160,000.
The taxing master also awarded Sh53,333 in ‘getting-up fees’, calculated at one-third of the gross instruction fee, alongside other charges for drawing documents, attendances and service.
The bill was consequently taxed at Sh389,064.50, and a Certificate of Taxation was issued on January 24, 2025.
The advocate then sought to have the certificate adopted as a final judgment and decree of the High Court, with interest at court rates and costs.
The woman challenged the assessment, arguing that the amount was excessive, legally unjustified and beyond her means.
Justice Namisi found that the taxing master had committed a fundamental error by failing to apply the specific provisions governing legal fees in subordinate court proceedings involving children.
The judge pointed to Schedule 7(4)(c) of the Advocates Remuneration Order, 2014, which expressly provides for an instruction fee of Sh5,000 for proceedings in subordinate courts relating to custody and access.
The court observed that the provision was not silent or ambiguous, leaving no justification for disregarding the prescribed scale.
The judge said even if the matter were assessed under the default provision in Schedule 7(2), which addresses suits whose subject matter cannot be ascertained, the applicable instruction fees would not exceed Sh50,000.
“Under no statutory interpretation could the Taxing Master legally award Sh200,000 as instruction fees for a child custody matter in a subordinate court,” the court held.
Court rules that child custody and maintenance cases should not be treated as commercial disputes.
Photo credit: Shutterstock
The judge found that the taxing master had bypassed the mandatory statutory limits and selected Sh200,000 without a lawful basis.
In doing so, the taxing master acted against the Advocates Remuneration Order, meaning that the decision exceeded the authority permitted by law.
The court further held that the failure to apply the correct statutory scale violated the client’s right to a fair hearing under Article 50 of the Constitution.
While a taxing master has discretion in assessing legal costs, the judge emphasised that the discretion must be exercised within the confines of the applicable law.
The ruling also addressed the award of getting-up fees, which the taxing master had calculated at one-third of the instruction fee.
Getting-up fees, the court explained, are provided for under Schedule 6 of the Advocates Remuneration Order, which applies to proceedings in the High Court. Schedule 7, which governs costs in subordinate courts, contains no provision for such fees.
The judge further noted that the custody dispute had been settled through a Parental Responsibility Agreement without proceeding to a full trial.
In those circumstances, the award of getting-up fees was unwarranted.
The judge said by importing a category of costs from a High Court scale into a subordinate court bill of costs, the taxing master exceeded the applicable legal framework, fundamentally undermining the resulting certificate.
The judge pointed out that Article 53(2) of the Constitution provides that a child’s best interests are of paramount importance in every matter concerning the child. Article 48, meanwhile, guarantees every person the right of access to justice.
Judge Namisi said the taxation of legal fees in custody disputes must be understood against these constitutional principles.
“The client placed uncontroverted evidence before the taxing master that she is a destitute single mother sustaining her family by selling jewellery online. An arbitrary award of Sh389,064.50 in a simple child custody matter violates the Premchand principle of proportionality and functions as a punitive barrier to justice,” the court said.
