Oluga t/a Oluga & Co Advocates v Rahimkhan & another (Miscellaneous Application E007 of 2024) [2025] KEELC 5832 (KLR)
The bottom line
#A Kenyan court increased an advocate's fee award to about Kshs 9.6 million after finding the taxing officer wrongly claimed the property's value could not be determined.
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 Chamber Summons application dated 23rd January, 2025 by the Applicant has met the threshold for setting aside of the Taxing Master's ruling delivered on 18th December, 2024.
- 2.Whether the court should independently assess the instruction fees and getting up fees.
- 3.Who meets the costs of this Application/Reference?
Key legal issues
#Whether the reference met the threshold for setting aside the Taxing Master's ruling
Yes - the taxing officer adopted the wrong principles in failing to ascertain the value of the respondents' share of the suit property, which was ascertainable from the pleadings and valuation report.
The court reviewed the settled principles from Machira, First American Bank, Joreth and Kamunyori: interference is justified where the taxing officer erred on a principle or the fee is manifestly excessive. The Taxing Master held the value of the respondents' portion could not be ascertained, yet the pleadings and uncontroverted valuation report showed 1,020 acres valued at Kshs 2 billion, of which the respondents owned 1/6 (170 acres) worth Kshs 333,333,332.70. Failure to ascertain this value was an error of principle.
Whether the court should independently assess the instruction fees and getting up fees
Yes - the court independently assessed instruction fees at Kshs 5,199,999.99 using Para 1(b)(ii) of Schedule 6 of the 2014 Advocates Remuneration Order, and re-taxation of consequential items followed.
Having found the correct subject matter value (1/6 of Kshs 2 billion = Kshs 333,333,332.70), the judge applied Schedule 6 of the 2014 Remuneration Order: Kshs 120,000 on the first million, 2% on the next Kshs 19 million, and 1.5% on the balance, totalling Kshs 5,199,999.99. Getting up fees (1/3), half advocate-client fees and the grand total were recomputed accordingly, varying and setting aside the taxing master's ruling in part.
Timeliness of the reference under Paragraph 11(2)
The reference was filed within time, excluding court vacation days under Order 50 of the Civil Procedure Rules.
Paragraph 11(2) requires an application to a judge within 14 days of receipt of the taxing officer's reasons, given in the ruling of 18th December 2024. Relying on Order 50 of the Civil Procedure Rules, 2010, the court excluded the period between 21st December 2024 and 13th January 2025 when computing the 14 days, so the Chamber Summons filed on 23rd January 2025 was in time.
Legal principles established
#- Any complaint about a decision of a taxing officer is ventilated by way of a reference to a Judge under paragraph 11 of the Advocates Remuneration Order.
- A judge will not interfere with a taxing officer's decision unless it is shown the decision was based on an error of principle or the fee was manifestly excessive.
- The value of the subject matter for taxation is determined from the pleadings, judgment or settlement; if unascertainable, the taxing officer may use discretion to assess a just instruction fee.
- Failure to ascertain or correctly ascribe the value of the subject matter is an error of principle justifying interference with a taxation decision.
Court orders
#- 1.The Chamber Summons application dated 23rd January, 2025 is found to have merit and is allowed in its entirety.
- 2.The taxation ruling delivered by Hon. R. K. Ogolla on 18th December 2024 be and is hereby party set aside to the extent that the amounts assessed for instructions fees and getting up fees be set aside.
- 3.Instructions fees independently assessed at Kshs 5,199,999.99/- (Kshs 24,500,000.01/- taxed off), based on one-sixth share of the suit property valued at Kshs 333,333,332.70/-.
- 4.Getting up fees taxed at Kshs 1,733,333.33/- (1/3 of instruction fees; Kshs 8,166,666.67/- taxed off).
- 5.Half advocate-client fees taxed at Kshs 2,600,000/- (Kshs 12,250,000/- taxed off).
- 6.Grand total amount assessed at Kshs 9,644,853.32/-.
- 7.There shall be no orders as to costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Paragraph 11(2) of the Advocates Remuneration Order (reference to a Judge against a taxing officer's decision)
Relief refused
#Costs of the application
Although the application was allowed, the Respondents did not participate and the court declined to award costs.
Costs
No orders as to costs.
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.
any complaint about any decision of the Taxing oficer whether it relates to a point of law taken with regard to Taxation or to a grievance about the Taxation of any item in the Bill of Costs is ventilated by way of a Reference to a Judge in accordance with paragraph 11 of the Advocates Remuneration Order.
Failure to ascertain the correct subject matter in a suit for the purpose of Taxation is an error of principle. So too, failure to ascribe the correct value to the subject matter is an error of principle.
The taxing oficers holding that the value of the portion owned by the respondents could not be ascertained was therefore plainly wrong.
I find that the Taxing Master can be said to have adopted the wrong principles in coming up with the amount due to the Applicant herein.
That the Chamber Summons application dated 23rd January, 2025 is found to have merit is hereby allowed in its entirety in the following terms
the Taxation ruling delivered by Hon. R. K. Ogolla on 18th December 2024 be and is hereby party set aside to the extent that the amounts assessed for instructions fees and getting up fees be set aside.
That there shall be no orders as to costs.
Issues in the judgment
#The judgment inconsistently records the taxing officer's assessed instruction fees as Kshs 1,700,000 while elsewhere within the same ruling reference is made to figures of Kshs 500,100,000 and Kshs 28,000,000 in the taxing master's reasons, and some monetary figures in the judgment are garbled.
The judgment inconsistently states both that the applicant did not seek costs and that the court declined to award costs despite allowing the application.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oluga t/a Oluga & Co Advocates v Rahimkhan & another (Miscellaneous Application E007 of 2024) [2025] KEELC 5832 (KLR)", Case Analysis (2025). Chamber Summons Application dated 23rd January, 2025 (arising from ELCLC 4 of 2024, formerly Mombasa ELC 137 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5832/eng@2025-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.