The High Court recently passed a ruling in the case of Job Kipkemei Kilach v Director of Public Prosecutions & 2 others [2016] eKLR in which the respondents had been awarded costs by the Court. The petitioner was aggrieved by the award of instruction fees to the second respondent, the Ethics & Anti-Corruption Commission (the Commission), and consequently sought prayers to have the Commission’s bill of costs quashed or re-taxed.

In this case, the Commission had not instructed external lawyers. It had instead, as some corporations sometimes do, utilised the services of its salaried employees. The counsel for the Commission were under the Commission’s employment. The petitioner, therefore, claimed that as in-house counsel of a state corporation, the Commission’s counsel were not entitled to instruction fees. The petitioner further argued that instruction fees were meant to compensate a party for expenses paid to its advocate and, as such, awarding the Commission instruction fees would amount to the sharing of legal fees with an unqualified person contrary to the Advocates Act.

In addition, the documents filed by in-house counsel were not drawn in the names of a professional firm but in the name of the Commission itself. Consequently, it was argued that the Commission fell in the genre of a party acting in person. The issue arising from this was that there was a danger in the instruction fees ending up in the pocket of the Commission. The in-house counsel would, therefore, be deemed to be sharing fees with the Commission (which was described as an unqualified person).

The Court held that the Commission was only entitled to the disbursements and other costs but not the instruction fees.

Organisations seeking to use in-house counsel in their full employ to represent them in court should take note of the repercussions of this case. Such organisations will be unable to claim for the award of costs in respect to instruction fees.