Muchai v Muchai & another (Civil Appeal (Application) 279 of 2019) [2025] KECA 667 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.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
#Circumstances in which a judge may interfere with a taxing officer's decision on a reference under Rule 117
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
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.
Whether the taxing officer erred in refusing to base the instruction fee on the value of the deceased's estate (Kshs. 3.5 billion)
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
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.
Whether the award of Kshs. 1,000,000 as instruction fee was manifestly inadequate
The applicant failed to demonstrate manifest inadequacy beyond mischaracterising the subject matter
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
#- 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
#- 1.The reference is dismissed
- 2.The applicant to pay the costs of the reference
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Costs
The reference was dismissed with costs (costs awarded to the respondent)
Quotable passages
#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.
A reference “on a question of quantum only” is not permissible under Rule 117(3).
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.
The object of taxation is therefore to ensure that the litigation costs recoverable are reasonable.
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)
Issues in the judgment
#Inconsistent spelling of the same authority within the judgment ('Premchand Raichand Ltd' and 'PremchandRaichand Limited & Another' appear as separate renderings of the same case)
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.