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ELCPartially AllowedMiscellaneous Civil Application (Rule 11 reference), Machakos· [2025] KEELC 816 (KLR)

Bwosiemo & 2 others v Muchangi Nduati Ngingo t/a Muchangi Nduati & Co. Advocates (Environment and Land Miscellaneous Application 34 of 2023) [2025] KEELC 816 (KLR)

High Court of Kenya
26 February 2025
NMN.A. Matheka
939 words in judgment
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The bottom line

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The High Court in Machakos set aside a taxing officer's ruling because payments of Kshs 397,000 were ignored, ordering the bill be taxed afresh.

What this practically means

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Executive summary

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By an application dated 28th November 2023 brought under Rule 11(1), (2) and (4) of the Advocates Remuneration Order, 2014 and Order 21 Rule 9 and Sections 1 and 3A of the Civil Procedure Rules, Manwah Bwosiemo Magara sought to set aside a Taxing Officer's Ruling delivered on 15th December 2022 in a bill of costs between Muchangi Nduati & Company Advocates and the applicant (with Ian Magara and Brenda Kwamboka named on the bill). The applicant contended that the Taxing Officer disregarded MPESA and cash payments totalling Kshs 397,000/= made to the advocate, which were set out in submissions dated 15th July 2022 but not in the replying affidavit; he also complained of mix-ups in the citation of the ruling and of the estate concerned, and of not being notified of the delivery of the ruling. The respondent maintained that the taxing master considered all items and submissions and that any misdescription was a mere technicality. The court set out the Rule 11 procedure for challenging a taxing decision and the settled principles from First American Bank of Kenya v Shah and Joreth Ltd v Kigano & Associates that interference requires an error of principle, manifestly excessive fees, or capricious exercise of discretion. Examining the ruling, the court found the taxing master had excluded the alleged payments because they appeared only in submissions. Holding it in the interests of justice that the taxing master consider all alleged payments and assess the evidence supporting them, the judge set the ruling aside, directed fresh taxation by a different taxing master, and made no order as to costs.

Key legal issues

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01

Whether the Taxing Officer's ruling ought to be set aside

Holding

The application was merited because the Taxing Officer did not consider alleged payments contained only in submissions rather than the replying affidavit; the interests of justice required reconsideration of those payments

Reasoning

The court perused the taxing master's ruling and found that she expressly stated the alleged payments were raised in submissions and not in the replying affidavit, and therefore excluded them. The judge held it was in the interests of justice that the taxing master consider all alleged payments and determine whether there is sufficient evidence to include them, warranting setting aside and fresh taxation by a different taxing master.

p. 3

Legal principles established

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  • A Taxing Master's decision can only be interfered with where it is based on an error of principle, the fee awarded is manifestly excessive, or the discretion was exercised capriciously

Court orders

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  1. 1.That the Ruling of the Honourable Taxing Officer delivered on 15th December 2022 be set aside
  2. 2.That the bill of costs be taxed afresh by a different taxing master
  3. 3.No orders as to costs
On appeal from
null — reference against a Taxing Master's ruling, not an appeal
Muchangi Nduati & Company Advocates vs. Al Ruhia Miscellaneous Civil Application Number 25 of 2022 (Taxing Officer's Ruling, 15th December 2022)
Jurisdiction invoked
Rule 11(1), (2) and (4) of the Advocates Remuneration Order, 2014; Order 21 Rule 9 and Sections 1, 3A of the Civil Procedure Rules/Act

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, "Bwosiemo & 2 others v Muchangi Nduati Ngingo t/a Muchangi Nduati & Co. Advocates (Environment and Land Miscellaneous Application 34 of 2023) [2025] KEELC 816 (KLR)", Case Analysis (2025). Miscellaneous Civil Application (Rule 11 reference), Machakos. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/816/eng@2025-02-26

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