Law Society of Kenya representative to the Judicial Service Commission (JSC) Tom Ojienda could earn up to Sh1 billion in legal fees, thanks to the failure by the Nairobi County government and other State agencies to defend taxation cases in court.
Some of the court awards have already been secured by the lawyer while others, arising from several cases in which he has represented the county government, are pending.
The taxation cases resulting from the litigation of various cases have gone undefended, ultimately earning the lawyer millions of shillings to the detriment of the taxpayer.
TOP CASES
For instance, the court has already awarded Prof Ojienda Sh220 million after a High Court judge dismissed an application by the National Land Commission (NLC) to set aside a taxed bill of costs.
Of the six pending cases, three have been concluded while a similar number has proceeded to an advanced stage.
Prof Ojienda could soon be paid Sh225 million should a matter he has lodged seeking orders to have City Hall compelled to pay him costs be decided in his favour.
City Hall is fighting to set aside a ruling on the cases in which he has been awarded Sh40.9 million.
On the recent suit in which he obtained a judgment of Sh220 million, Prof Ojienda defended NLC against the Lands ministry in the Supreme Court after the commission sought an advisory opinion on who had the mandate to issue title deeds.
Although the commission lost the case after the judge ruled the issuance of title deeds was a preserve of the ministry, Prof Ojienda had the last laugh.
The lawyer later filed an application in the High Court to enforce the payment of the Sh220 million awarded by the taxing master and obtained a judgment in record time.
PENDING CASES
“To me, the chronology of events showed clearly the commission was disinterested in the whole taxation process despite being given at least two opportunities to lodge its objection as required by the law,” Justice Ogembo said.
The JSC commissioner has six pending judicial review cases in which he is seeking to enforce payment of fees and disbursements from taxed bill of costs for representing Nairobi County.
OJIENDA AWARDED
He has already won round one of the cases after High Court Judge George Odunga gave him the nod to prosecute the cases.
The court that taxed costs made favourable decisions on Prof Ojienda in four cases involving Nairobi County.
Thereafter, the lawyer obtained awards of Sh20 million and Sh12.7 million.
KRA AND EACC
Sources familiar with litigation matters indicate the costs taxed by the lawyer are rather high compared to the Advocates Remuneration and Taxation Costs.
The lawyer, who practises under Prof Tom Ojienda Associates, is also fighting legal battles with the taxman and the Ethics and Anti-Corruption Commission (EACC).
TAX ARREARS
The Kenya Revenue Authority (KRA) argued that the lawyer had evaded tax on his income as legal fees estimated at Sh1.1 billion received from Mumias Sugar Company and Nairobi County.
But what infuriated the taxman is that the blanket stay orders were issued in the absence of KRA and without requiring the respondent to deposit security for costs. The case is pending.
COURT ORDER
The authority issued agency notices to the banks seeking to recover the arrears amounting to Sh4.7 billion.
In another case involving KRA, the High Court on October 10 last year issued orders restraining the taxman from compelling, arresting or in any way harassing Mr Ayisi to provide information or communication between City Hall and Prof Ojienda, pending the hearing and determination of the case.
REVENUE
The lawyer acknowledged payment of Sh30 million but argued that the fee note was modest because of his good relationship with the county.
By winning the parking fees case, Prof Ojienda said he saved the county from incurring Sh9.5 billion loss over five years.
“If the fee computation was based on Sh9.5 billion as should be for instructions’ fees to a lawyer, I would have earned Sh286.4 million per scale before taxation and disbursements,” he said while defending himself against claims by Auditor-General Edward Ouko that the county had entered into contract with the lawyer without due diligence and proper review or advice from the legal department.
