Mwamunga & another v Mzungu (Civil Appeal (Application) E208 of 2023) [2026] KECA 42 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a Kshs.300,000 instructions fee, confirming taxing officers' fee awards stand unless you prove 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 Taxing Officer has absolute discretion to award instructions fee/cost that is inordinately low, as provided in paragraph 9(2) of the Third Schedule to the Court of Appeal Rules
- 2.Whether the award of Kshs.300,000 as instructions fee was based on any justifiable principle and whether the said amount was manifestly low in the circumstances of the case
Key legal issues
#Jurisdiction of a Single Judge to hear a reference attacking the quantum of instructions fee
The court has jurisdiction because the applicant challenged the principles applied, not quantum alone; inordinately low or high awards are matters of principle and law.
Rule 117(3) bars references on quantum only, but Rule 117(1) permits referral of matters of law or principle. The court held that where the applicant contends that irrelevant or wrong principles were applied, the complaint transcends quantum and confers jurisdiction on the Single Judge.
Whether the taxing officer erred in principle in awarding Kshs.300,000 as instructions fee
No error of principle; the taxing officer considered the applicable principles including legal complexity and volume of work, and the amount was fair and reasonable.
The appeal was an interlocutory appeal on the applicant's status as a beneficiary, not on distribution of the estate, and raised no exceptional legal complexity or voluminous records. The claimed estate value of Kshs.1.4 billion was unsubstantiated by any valuation report, and per Joreth Limited the subject matter value must be ascertained from the pleadings, judgment or settlement.
Legal principles established
#- A reference under Rule 117 lies where a party challenges not merely quantum but an error of law or principle, or an award that is manifestly excessive or manifestly inadequate; a challenge to quantum alone is barred.
- The value of the subject matter for purposes of taxing instructions fee is ascertained from the pleadings, judgment or settlement; if not so ascertainable, the taxing officer may exercise discretion to assess a just fee.
Court orders
#- 1.The Reference is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Taxing Officer, Court of Appeal
- Ruling on Bill of Costs dated 16th May 2025
- Jurisdiction invoked
- Rule 117 of the Court of Appeal Rules, 2022 (reference from a taxing officer's decision to a Single Judge)
Relief refused
#Increase of the instructions fee from Kshs.300,000 to Kshs.12,000,000 (or Kshs.6-7 million as urged in submissions)
No error of principle attributed to the taxing officer's decision; the appeal was not complex and the amount awarded was fair and reasonable
Costs
The Reference is dismissed with costs 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 end, I arrive at the inescapable conclusion that the taxing oficer adopted the correct approach and applied the correct principles in reaching her findings.
I find that the Reference is unmeritorious and I hereby dismiss it with costs to the respondent.
A party applying for a reference must bring themselves within the ambit of demonstrating that there was an error of law or principle or that the award of costs made by the taxing oficer was manifestly excessive or manifestly inadequate.
Issues in the judgment
#The Reference is dated 21st July 2024 instead of 21st July 2025, an error the judgment itself notes
The judgment inconsistently states the value of the estate as Kshs.1.2 billion in the applicant's submissions and Kshs.1.4 billion in the court's discussion
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwamunga & another v Mzungu (Civil Appeal (Application) E208 of 2023) [2026] KECA 42 (KLR)", Case Analysis (2026). Not stated in the judgment (Reference under Rule 117 of the Court of Appeal Rules, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/42/eng@2026-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.