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Court of AppealDismissedNot stated in the judgment

Muchai v Muchai & another (Civil Appeal (Application) 279 of 2019) [2025] KECA 667 (KLR)

Court of Appeal
11 April 2025
2,170 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to increase a lawyer's fee award, confirming judges rarely disturb a taxing officer's costs decision absent an error of principle.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal, Nairobi, delivered by S. Gatembu Kairu, JA, on 11th April 2025, on a reference under Rule 117 of the Court of Appeal Rules against a taxation decision of 15th November 2024 by Hon. J. N. Wambilyanga, Deputy Registrar, who taxed the applicant's bill at Kshs. 1,066,695.00, including instruction fees of Kshs. 1,000,000.00. The applicant, who had sought instruction fees of Kshs. 121,565,836.00 based on an estate valued at approximately Kshs. 3.5 billion, contended that the taxing officer applied the wrong principle by failing to consider the value of the subject matter and by overemphasising access to justice. The respondent maintained the taxing officer properly exercised her discretion, since the appeal concerned the validity of a power of attorney, not the estate itself. The court restated the rationale underlying taxation of costs and the limited grounds for interference: an error of law or principle, or an award that is manifestly excessive or manifestly inadequate, noting that a reference on quantum alone is impermissible. Relying on Kenya Airports Authority v Otieno Ragot, Premchand Raichand, Steel & Petrol, R. Billing and Joreth Limited, the court held that the subject matter of the underlying appeal was the power of attorney and the conduct of the High Court proceedings, not the estate, so the taxing officer rightly declined to use the estate's value. No error of principle or law was discerned, and the applicant failed to show the award was manifestly inadequate. The reference was dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant demonstrated an error of law or principle, or that the taxed instruction fee was manifestly excessive or manifestly inadequate, so as to justify interference under Rule 117
  2. 2.Whether the taxing officer erred in failing to base the instruction fee on the value of the deceased's estate of approximately Kshs. 3.5 billion

Key legal issues

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01

Circumstances in which a judge may interfere with a taxing officer's decision on a reference under Rule 117

Holding

Interference is limited to cases of error of law or principle, or where the award is manifestly excessive or manifestly inadequate; the burden lies on the party seeking the reference to bring themselves within that ambit

Reasoning

The court traced the rationale of the Advocates Remuneration Order and Part V of the Court of Appeal Rules through Supreme Court and Court of Appeal authority, including Premchand Raichand and Steel & Petrol. Rule 117(1) confines references to matters of law or principle and Rule 117(3) permits references where the bill is manifestly excessive or inadequate, but not on quantum alone. The applicant bore the burden of demonstrating one of these grounds.

p. 4
02

Whether the taxing officer erred in refusing to base the instruction fee on the value of the deceased's estate (Kshs. 3.5 billion)

Holding

No error: the appeal's subject matter was the validity of a power of attorney and the manner in which the High Court conducted proceedings, not the estate itself; the value of the estate was irrelevant to the assessment

Reasoning

Applying Joreth Limited v Kigano and Associates, the value of the subject matter is determined from the pleadings and judgment. The Court of Appeal's own reasons in the underlying appeal identified the main issue as the manner in which the superior court handled the matter and the validity of the power of attorney. Since the estate was not the subject of the appeal, the taxing officer correctly declined to use its value in computing the instruction fee.

p. 4
03

Whether the award of Kshs. 1,000,000 as instruction fee was manifestly inadequate

Holding

The applicant failed to demonstrate manifest inadequacy beyond mischaracterising the subject matter

Reasoning

The court acknowledged the ruling would have been enriched by an explanation of how the Kshs. 1 million figure was reached, but held that the applicant did not show the taxing officer considered irrelevant matters, omitted relevant ones, or reached a plainly wrong decision. Mere disagreement with the quantum is insufficient; a reference on quantum alone is impermissible.

Legal principles established

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  • A reference under Rule 117 of the Court of Appeal Rules lies only on a matter of law or principle, or where the bill as taxed is manifestly excessive or manifestly inadequate; a reference on a question of quantum alone is not permissible
  • A court will not interfere with a taxing officer's assessment of costs unless there is a misdirection on principle or the award is so high or so low as to amount to an injustice to a party
  • The value of the subject matter for purposes of taxation is ascertained from the pleadings, judgment or settlement; the subject matter of the appeal in question was the validity of a power of attorney, not the value of the estate

Court orders

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  1. 1.The reference is dismissed
  2. 2.The applicant to pay the costs of the reference

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Court of Appeal (Deputy Registrar sitting as taxing officer)
Not stated in the judgment
Jurisdiction invoked
Rules 116 and 117 of the Court of Appeal Rules (reference from a taxing officer's decision to a judge of the Court of Appeal)

Relief refused

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Reference against the taxing officer's decision awarding instruction fees of Kshs. 1,066,695.00

The applicant failed to demonstrate an error of principle or law, or that the award was manifestly excessive or inadequate; the subject matter of the appeal was the validity of a power of attorney, not the value of the estate

p. 4

Costs

The reference was dismissed with costs (costs awarded to the respondent)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the result, I find that the reference has no merit and is accordingly dismissed with costs.
p. 5Final orders - dismissal of the reference
A reference “on a question of quantum only” is not permissible under Rule 117(3).
p. 3Scope of references from a taxing officer
It is incumbent upon a party applying for a reference to bring themselves within the ambit of interference by demonstrating the error of law or principle or that the award of costs made by the taxing officer is manifestly excessive or manifestly inadequate.
p. 4Burden on an applicant for a reference
The object of taxation is therefore to ensure that the litigation costs recoverable are reasonable.
p. 3Rationale of taxation of costs
the value of the subject matter of a suit for the purposes of taxation of a bill of costs ought to be determined from the pleadings, judgment or settlement (if such be the case)
p. 4Determination of subject matter value for taxation

Issues in the judgment

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minor

Inconsistent spelling of the same authority within the judgment ('Premchand Raichand Ltd' and 'PremchandRaichand Limited & Another' appear as separate renderings of the same case)

minor

The taxing officer's ruling, as quoted, attributes the Kshs. 121,565,836 figure to 'the respondents', whereas elsewhere in the judgment the applicant is the party who proposed that figure - an apparent internal inconsistency in the quoted extract

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Muchai v Muchai & another (Civil Appeal (Application) 279 of 2019) [2025] KECA 667 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/667/eng@2025-04-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.