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ELCAllowedMeru ELC Misc Application No. E012 of 2022 (Reference from taxation; Chamber Summons dated 18th June 2024)· [2025] KEELC 4047 (KLR)

Mwarabu & another v Kariuki t/a BG Kariuki & Company Advocates (Environment and Land Miscellaneous (Reference) Application E025 of 2024) [2025] KEELC 4047 (KLR)

Environment and Land Court
30 January 2025
CYC. Yano
3,813 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out a lawyer's bill because the taxing officer used a mechanical formula instead of properly assessing each disputed item.

What this practically means

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Executive summary

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The applicants, clients of the respondent firm of advocates, sought by chamber summons dated 18th June 2024 to set aside a ruling of the taxing officer delivered on 9th February 2024 in Meru ELC Misc Application No. E012 of 2022, whereby their advocate's advocate/client bill of costs dated 26th April 2022 was taxed at Kshs. 304,137/-, with instruction fees of Kshs. 329,137/- derived by enhancing party and party costs of Kshs. 219,425/- taxed in Meru ELC No. 98 of 2016 by 50%. The applicants complained that the taxing officer failed to consider payments totalling Kshs. 168,000/- evidenced by receipts, failed to deal with their objections, and that the respondent had not drawn his bill in compliance with Rule 69 of the Advocates (Remuneration) Order. The respondent, through Susan Mbumbuya, maintained that the retainer was undisputed, that only Kshs. 25,000/- related to instruction fees, and that Schedule VI Part B mandated the party and party figure plus 50%. Delivering judgment at Eldoret on 30th January 2025, C. Yano, ELC Judge, applied the Supreme Court's decision in Kenya Airports Authority v Otieno Ragot, holding that a taxing officer must exercise judicial discretion guided by the Part A scale rather than apply a mechanical arithmetic formula, and that failure to evaluate disputed items is contrary to the Advocates Remuneration Order. Finding the taxing officer misapprehended the applicable principles, the court allowed the application, set aside the ruling, remitted the bill for re-taxation by another taxing officer, and awarded costs of the application to the applicants.

Key legal issues

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01

Whether the taxing officer erred by applying a mechanical formula of party and party costs plus 50% in taxing the advocate/client bill

Holding

The taxing officer misapprehended the principles applicable in taxation of an advocate/client bill by treating the enhancement as an entitlement as of right requiring no discretion, and her ruling was accordingly erroneous and set aside

Reasoning

The taxing officer relied on Central Bank of Kenya v Makhecha to hold that once party and party costs are taxed, the advocate is entitled as of right to those costs plus half, as a matter of arithmetic requiring no discretion. The court, guided by the Supreme Court's decision in Kenya Airports Authority v Otieno Ragot, held that Schedule VI Part B requires judicious evaluation of disputed items guided by the Part A scale, not a mere mathematical formula, and failure to evaluate disputed items is contrary to the Advocates Remuneration Order.

p. 6
02

The principles on which a court may interfere with a taxing officer's decision

Holding

A court cannot interfere with a taxing officer's decision unless it is shown that the decision was based on an error of principle or that the fee awarded was manifestly excessive

Reasoning

The court restated the classic threshold for interference on a reference from taxation. Applying that threshold, the taxing officer's purely arithmetic approach constituted an error of principle warranting the court's intervention, since she failed to exercise the judicial discretion required in assessing instruction fees where items are disputed.

p. 6

Legal principles established

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  • A taxing officer assessing instruction fees under Schedule VI Part B of the Advocates Remuneration Order must exercise discretion guided by the prescribed scale of fees in Part A and is not confined to a mechanical 50% enhancement of party and party costs.

Court orders

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  1. 1.The chamber summons application dated 18th June 2024 is allowed
  2. 2.The ruling of the taxing officer dated 9th February 2024 taxing the advocate/client bill of costs is set aside
  3. 3.The advocate/client Bill of costs dated April 26, 2022 is remitted for re-taxation by another taxing officer
  4. 4.Costs of the application are awarded to the applicants

Authorities

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Legislation

  • Advocates (Remuneration) OrderRule 11(1)
  • Advocates (Remuneration) OrderRule 69(1)(a)-(e), (2) & (3)
  • Advocates (Remuneration) OrderSchedule VI Part A and Part B
  • Advocates (Remuneration) (Amendment) Order, 2014Schedule 6 Parts A and B
  • Advocates ActSection 51(2); Section 2

Cases cited (2)

  • Kenya Airports Authority v Otieno Ragot and Company Advocates
    [2024] KESC 44 (KLR)
  • Central Bank of Kenya v Makhecha & Co. Advocates
    [2019] eKLR (Civil Appeal No. 48 of 2014)
Jurisdiction invoked
Reference against a taxing officer's ruling under Rule 11 of the Advocates (Remuneration) Order; the Environment and Land Court Act jurisdiction of the ELC

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, "Mwarabu & another v Kariuki t/a BG Kariuki & Company Advocates (Environment and Land Miscellaneous (Reference) Application E025 of 2024) [2025] KEELC 4047 (KLR)", Case Analysis (2025). Meru ELC Misc Application No. E012 of 2022 (Reference from taxation; Chamber Summons dated 18th June 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4047/eng@2025-01-30

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