Tom Ojienda & Associates v Nairobi City County (Civil Appeal 273 of 2020) [2026] KECA 1612 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a Ksh. 1 million fee award, ruling that public law victories can't be used to justify billion-shilling legal fees.
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 High Court erred by declining to interfere with the exercise of discretion by the taxing master in her award on instruction fees
- 2.Whether the value of the subject matter of the constitutional petition was Ksh. 20,000,000,000.00 for purposes of instruction fees
- 3.Whether the taxing master's award of instruction fees of Ksh. 1,000,000.00 was inordinately low
- 4.Whether the taxing master's failure to consider the parties' submissions, and her misstatement of the holding in Nyangito & Company Advocates v. Doinyo Lessos Creameries Ltd, constituted material misdirection warranting interference
Key legal issues
#Value of the subject matter in public law litigation for instruction fees
The petition did not involve a claim of Ksh. 20,000,000,000.00; the subject matter was the constitutional question of prudent, accountable use of county revenue, and its value could not be pegged to the revenues collected.
The court held that the value of the subject matter must be discerned from the pleadings or judgment. The petition questioned whether the County collected and used revenue in accordance with the Constitution, the County Governments Act and the PFMA. It was not a claim for money, and the outcome would have been the same irrespective of the amount of revenue involved, so the Ksh. 20 billion figure was a mischaracterisation.
Whether the award of instruction fees of Ksh. 1,000,000.00 was inordinately low
No. Against a prescribed minimum of Ksh. 100,000.00 under Schedule 6(1)(j), the award represented a 1000% increase reflecting the nature, importance, complexity and novelty of the petition; it was the appellant's claim that was manifestly excessive.
It was common ground that the minimum instruction fee for an opposed constitutional petition was Ksh. 100,000.00. The taxing officer, taking into account the considerations in the Remuneration Order, awarded ten times that amount. The court found the award adequately explained by the taxing master's findings and rejected the contention that it was inordinately low.
Whether the taxing master's incomplete quotation of Nyangito and failure to consider submissions amounted to material misdirection
Although the taxing master incompletely quoted Nyangito (stating the subject matter does not determine costs rather than that it is one of the factors), the error was not material because the subject matter was in fact considered, and no misdirection of the magnitude required to vitiate the award was shown.
The court acknowledged that Odunga, J.'s holding in Nyangito was that the subject matter is one of the factors, not that it is excluded. Yet both the taxing master and the High Court considered the subject matter. Applying Bank of Uganda v. Banco Arabe Esapanol, interference requires an error that substantially affected quantum and would cause injustice; no such error was discerned here.
Legal principles established
#- An appellate court and the High Court on a reference will not interfere with a taxing master's award unless the decision was based on an error of principle, or the fee is so manifestly excessive or low as to amount to an injustice; even a shown error of principle warrants interference only if it substantially affected the quantum and would cause injustice.
- The value of the subject matter for instruction fees is determined from the pleadings, judgment or settlement; if not ascertainable, the taxing officer may assess a just fee considering the nature and importance of the matter, the interests of the parties and the conduct of proceedings.
- Perceived public-sector earnings do not constitute the subject matter in public law claims such as constitutional petitions and judicial review proceedings; instruction fees in such matters should not be extrapolated from private law practice.
- Not every misdirection by a taxing master results in interference with the discretion; it must be a misdirection that vitiates the award.
Court orders
#- 1.Appeal dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated in the judgment (reference from taxation ruling)
- Jurisdiction invoked
- First appellate jurisdiction over the High Court decision on a reference from a taxing master (not expressly stated in the judgment)
Relief refused
#Setting aside or variation of the taxing master's award of instruction fees of Ksh. 1,000,000.00
The taxing master properly exercised her discretion; no misdirection of a nature or magnitude sufficient to vitiate the award was discerned
Claim that the value of the subject matter was Ksh. 20,000,000,000.00
The value was not discernible from the pleadings or judgment; the petition raised a public law question, not a monetary claim
Costs
Appeal 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 premises, we find that this appeal is bereft of merit and is hereby dismissed with costs to the respondent. It is so ordered.
the court will not interfere with the decision of the taxing master in every case where its view of the matter in dispute difiers from that of the taxing master, but only when it is satisfied that taxing master's view of the matter difiers so materially from its own that it should be held to vitiate the ruling.
At no point in the petition did the respondent risk losing Ksh. 20,000,000,000.00 or the petitioner gaining that sum.
On the contrary, it was the appellant who was demanding an inordinately astronomical and manifestly excessive award.
Taxation of costs is not a mathematical exercise; it is entirely a matter of opinion based on experience.
Issues in the judgment
#The judgment records the delivery date as 2026, which appears typographically inconsistent with submissions dated 2020/2021; recorded as printed.
The judgment contains typographical errors in quoted passages (e.g. 'Difierently', 'afiected', 'oficer'), which are reproduced verbatim in this brief.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tom Ojienda & Associates v Nairobi City County (Civil Appeal 273 of 2020) [2026] KECA 1612 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1612/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.