Kanai t/a A. Thuo Kanai Advocates v Talwar & another (Miscellaneous Application 26 of 2018) [2025] KEELC 7933 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the court should interfere with the Taxing Master's decision of 25th March 2024
Yes - the court's role is supervisory, and errors of principle were demonstrated, warranting interference.
The court reiterated that it does not sit on appeal over a Taxing Master's discretion; interference is limited to error of principle or manifestly excessive/low fees amounting to injustice. The Applicant demonstrated that the taxing officer failed to conduct the directed de novo taxation and disregarded binding directions of Mwangi J., satisfying the threshold for interference.
Whether the Taxing Officer erred in principle in taxing items 1, 3, 5, 6, 8, 18 and 21
Yes - multiple errors of principle were found in respect of all impugned items.
The taxing officer failed to apply the Schedule I minimum instruction fee of Kshs. 325,000, ignored Paragraph 29 dual fees and incorporation fees, retained sub-minimum time charges contrary to Schedule V Part II paragraph 4, and reduced service fees without considering distance and time. These cumulative missteps rendered the taxation unsustainable in law.
What remedy and costs should follow
The taxation is set aside in its entirety and the four Bills of Costs remitted for fresh taxation before a different Taxing Officer; the Applicant gets the costs of the reference.
Following Mwangi J.'s earlier ruling, where a taxing officer errs in principle the proper course is remittal for fresh taxation. Because the decision cannot be salvaged by variation, it was wholly set aside. Costs follow the event under Section 27 of the Civil Procedure Act, but each party bears own costs in the ensuing taxation to ensure proportionality.
Legal principles established
#- A judge on a reference will not interfere with a Taxing Officer's discretion unless the taxing officer erred in principle in assessing costs.
- A taxing officer must first set out the basic instruction fee before considering whether to increase or reduce it, and must give reasons.
- An advocate who elects to charge under Schedule V may not charge less than the scale fee under the appropriate schedule, and is entitled to dual fees when acting for both vendor and purchaser, each reduced by one-sixth.
- Where a taxation is set aside and a de novo taxation directed, a taxing officer who merely endorses the set-aside figures commits an error of principle.
Court orders
#- 1.The Taxing Officer's ruling dated 25th March 2024 is set aside in its entirety.
- 2.The Bills of Costs dated 18th February 2018 in ELC Miscellaneous Application Nos. 26, 27, 28 and 29 of 2018 are remitted for taxation afresh before a different Taxing Officer.
- 3.The Applicant shall have the costs of this Reference.
- 4.Each party shall bear its own costs in the subsequent taxation proceedings.
- Jurisdiction invoked
- Paragraph 11(1) and (2) of the Advocates (Remuneration) Order and Section 44 of the Advocates Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kanai t/a A. Thuo Kanai Advocates v Talwar & another (Miscellaneous Application 26 of 2018) [2025] KEELC 7933 (KLR)", Case Analysis (2025). ELC Miscellaneous Application Nos. 26, 27, 28 & 29 of 2018 (Consolidated); Reference against Taxing Officer's ruling of 25th March 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7933/eng@2025-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.