Nyamolo v Kisia (Environment and Land Civil Miscellaneous Application 9 of 2023) [2025] KEELC 7548 (KLR)
The bottom line
#Kenya's High Court confirmed counter-claims earn advocates their own instruction fee, but only trials actually fixed for hearing qualify for getting-up fees.
What this practically means
#Executive summary
#Key legal issues
#Principles governing interference with a Taxing Master's decision on a reference
The jurisdiction is supervisory, not appellate; interference is warranted only on error of principle or where the award is manifestly excessive or inordinately low.
The Taxing Officer exercises judicial discretion under the Advocates (Remuneration) Order. Relying on Kipkorir, Titoo & Kiara, Arthur v Nyeri Electricity and Peter Muthoka, the court held that questions of quantum belong to taxing officers and the court intervenes only exceptionally, placing the burden on the applicant to demonstrate misapplication of law or wrong considerations.
Whether disallowing a separate instruction fee for the counter-claim was an error of principle
Yes - the counter-claim is an independent suit for taxation purposes and attracts its own instruction fee, especially where costs of both suit and counter-claim were expressly awarded.
The judgment in Migori ELC No. 38 of 2019 awarded the plaintiff costs of the suit and counterclaim. Citing Kenyariri & Associates and Amon v Bobbett, the court held the counter-claim must be treated as an independent action for taxation; its disallowance of a separate instruction fee was an error of principle.
Whether the Taxing Master erred in disallowing getting-up fees
No - getting-up fees require that the matter was fixed for hearing and substantial trial preparation demonstrated, which the record did not show for the counter-claim.
Relying on Kagwimi Kang'ethe, the court noted getting-up fees are chargeable where a matter is fixed for hearing. The record before the Taxing Master did not show the counter-claim was independently fixed for hearing or that preparation specific to it was undertaken, so the Taxing Officer's cautious disallowance could not be faulted.
The appropriate remedy upon finding an error of principle
Set aside the taxation and remit the Bill of Costs for fresh taxation before a different Taxing Officer with directions on separate consideration of the suit and counter-claim.
Following First American Bank of Kenya v Shah, the proper course upon an error of principle is normally remittal for fresh taxation unless the record enables substitution. Since the error related solely to the instruction fee on the counter-claim, the court remitted the bill rather than conduct a fresh taxation.
Legal principles established
#- On a reference from taxation, the judge will not interfere with the Taxing Officer's discretion unless there is an error in principle or the award is manifestly excessive or inordinately low.
- A counter-claim assumes the character of an independent suit for purposes of taxation and attracts its own instruction fee.
- Getting-up fees are payable only where the matter has been fixed for hearing and actual preparation for trial is demonstrated.
- Where an error of principle is established in taxation, the proper course is normally to remit the Bill of Costs for fresh taxation.
Court orders
#- 1.The Ruling and Certificate of Costs issued by the Taxing Master on 30th May 2023 are hereby set aside.
- 2.The Bill of Costs dated 14th March 2023 shall be and is hereby remitted to the Taxing Master for reconsideration of Item of the said Bill of Costs.
- 3.Each party shall bear its own costs of this Reference.
- Jurisdiction invoked
- Rule 11(1) & (2) of the Advocates (Remuneration) Order; Sections 1A, 1B & 3A of the Civil Procedure Act; Articles 159 and 165 of the Constitution, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyamolo v Kisia (Environment and Land Civil Miscellaneous Application 9 of 2023) [2025] KEELC 7548 (KLR)", Case Analysis (2025). Chamber Summons dated 20th June 2023 (Reference). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7548/eng@2025-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.