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Case Brief · caselaw.co.ke
Court of AppealDismissedChamber Summons dated 23rd July 2025· [2025] KECA 1647 (KLR)

Monica W Mwema & 6 others v Cosmos N Macharia & 1 other

Court of Appeal of Kenya
9 October 2025
2,517 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal confirmed that advocates can file a costs bill years after judgment, and appellate instruction fees are not capped by High Court scales.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nakuru (M. Warsame, JA) on a chamber summons dated 23rd July 2025 by Wilfey Investment Limited seeking to vary or set aside the taxing master's ruling of 25th July 2025, which taxed the applicants' party-and-party bill of costs at Kshs. 217,300 following the withdrawal of Wilfey's notice of appeal against a High Court judgment of Maraga J dated 23rd February 2010. The reference attacked the instruction fee of Kshs. 200,000 as excessive, contended that the bill was filed five years and four months after the award and hence time-barred, argued that the applicable scale was the High Court scale of Kshs. 3,000 under paragraph 9(4) of the Third Schedule, and challenged court attendance fees. The court held that no written request under Rule 2(2) of the Third Schedule had triggered the 21-day period and that Section 4(1)(c) of the Limitation of Actions Act allows twelve years for actions on a judgment, so the taxing officer had jurisdiction. On the merits, it held that paragraphs 9(1) and (2) are self-contained provisions governing appellate instruction fees and that High Court scales under sub-paragraph (4) apply only to 'other costs'. Applying the exacting Premchand test, the court found no error in principle or manifest excess, holding that scale items 18(a) and 15(a) are minimum scales, not ceilings. The reference was dismissed with no orders as to costs, affirming the taxing master's ruling in full.

Key legal issues

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01

Limitation for lodging a bill of costs

Holding

The bill was not time-barred: no written request under Rule 2(2) of the Third Schedule was made to trigger the 21-day period, and the twelve-year period under Section 4(1)(c) of the Limitation of Actions Act had not elapsed.

Reasoning

Rule 2(2) of the Third Schedule requires a bill to be lodged within 21 days of a written request by the party liable. There was no evidence of such a request. Alternatively, Section 4(1)(c) of the Limitation of Actions Act gives twelve years for actions founded on judgment, and the bill was filed well within that period, so the taxing officer had jurisdiction.

p. 2
02

Applicable scale for instruction fees on appeal

Holding

Paragraph 9(2) of the Third Schedule governs instruction fees to appeal or oppose an appeal; paragraph 9(4)'s reference to High Court scales applies only to 'other costs'.

Reasoning

Sub-paragraphs (1) and (2) comprehensively deal with instruction fees, vesting wide discretion in the taxing officer based on enumerated factors. Recourse to High Court scales would render those provisions nugatory and produce the absurd result that appellate instruction fees would be lower than High Court fees.

p. 3
03

Whether the instruction fee of Kshs. 200,000 was manifestly excessive

Holding

It was not; the taxing officer applied the correct principles from Premchand and comparable authorities allowing Kshs. 100,000, and doubling that amount is not automatically manifestly excessive.

Reasoning

The test for interference is exacting and deliberately high. Although the ruling lacked detailed reasoning, absence of elaborate reasons does not ipso facto vitiate an award where the correct principles were applied. Each case must be assessed on its own merits and circumstances.

p. 5
04

Court attendance fees before the Court and the Registrar

Holding

The scale items are minimum scales, not ceilings, and the amounts allowed reflected a holistic assessment of ancillary work integral to court attendance.

Reasoning

The taxing officer was entitled to consider factors beyond mere duration, including complexity, preparation and the nature of proceedings. Ancillary work such as reviewing the file, preparing submissions, consultations and follow-up is integral to effective attendance though not separately itemised.

p. 5

Legal principles established

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  • A court will not interfere with the discretion of a taxing officer unless an error of principle is shown, and will only interfere where the award is so high or so low as to amount to an injustice
  • Paragraphs 9(1) and (2) of the Third Schedule to the Court of Appeal Rules are self-contained provisions governing instruction fees on appeal; the High Court scales in sub-paragraph (4) apply only to 'other costs', so instruction fees in the Court of Appeal are not capped by High Court scales
  • The scale items for court attendance under the Third Schedule provide minimum scales, not ceilings, and a taxing officer may allow higher amounts where circumstances justify it
  • A bill of costs is not time-barred absent a written request by the party liable triggering the 21-day period; the twelve-year limitation period in Section 4(1)(c) of the Limitation of Actions Act applies to actions on a judgment

Court orders

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  1. 1.The reference is dismissed with no orders as to costs
On appeal from
Taxing Master, Court of Appeal (Deputy Registrar, Hon. Lina Akoth)
Party and Party Bill of Costs dated 26th May 2025
Jurisdiction invoked
Reference under the Court of Appeal Rules, Third Schedule (chamber summons to vary/set aside the ruling of the taxing master)

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, "Monica W Mwema & 6 others v Cosmos N Macharia & 1 other", Case Analysis (2025). Chamber Summons dated 23rd July 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1647/eng@2025-10-09

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