Kimotho & another v Kihumba & another (Miscellaneous Application E186 of 2025) [2026] KEELC 189 (KLR)
The bottom line
#Kenya's High Court dismissed a challenge to Kshs. 300,000 instruction fees, ruling that winning on a preliminary objection still counts as a successful defence justifying full fees.
What this practically means
#Executive summary
#Key legal issues
#Competence of a reference filed as a fresh miscellaneous application rather than in the suit in which the taxation occurred
The reference should have been filed in ELC Case No. E130 of 2023; however, the mistake was curable since the taxation pleadings were attached, permitting determination on the merits under the overriding objective.
Rule 11 of the Advocates Remuneration Order requires the objection and reference to be lodged within the same cause in which the bill was taxed, following F.A. Badia and Kimatta. The applicants filed a separate miscellaneous cause, which is improper. Yet because the applicants attached the pleadings from the taxation proceedings, the court could effectively determine the reference, and the error was cured in line with the overriding objective.
Whether the Taxing Officer erred in principle in treating the suit as defended by way of preliminary objection and awarding instruction fees of Kshs. 300,000 under Schedule 6(1)(b) of the Advocates Remuneration Order
No error of principle. The dismissal of the suit on a preliminary objection achieved the goal of a successful defence; the work done on the preliminary objection formed part of the overall legal services in defending the suit, and the fee awarded was reasonable.
The court held that the dismissal of the suit following the preliminary objection amounted to a successful defence, so the taxing master was entitled to apply Schedule 6(1)(b). The taxing master considered the nature and importance of the matter, the amount of work involved and the stage at which the matter concluded. Determination at a preliminary stage did not negate the complexity or importance of the respondents' advocates' work, and the award was neither manifestly excessive nor unjustified.
Legal principles established
#- A judge on a reference ought not to interfere with the Taxing Officer's assessment of costs unless the Taxing Officer misdirected himself on a matter of principle, which may be inferred from an award that is manifestly excessive or manifestly low.
- A reference against a taxation decision should be filed in the same cause in which the bill of costs was taxed, not in a fresh miscellaneous file.
- A procedural mistake in filing the reference in the wrong file is curable where the overriding objective is satisfied and the pleadings from the taxation are placed before the court.
Court orders
#- 1.The chamber summons application dated 3rd July 2025 (the reference) is dismissed as unmerited - the Taxing Officer committed no error of principle
- 2.Costs of the application to be borne by the Respondents
- Jurisdiction invoked
- Rule 11 of the Advocates Remuneration Order (objection to decision on taxation)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimotho & another v Kihumba & another (Miscellaneous Application E186 of 2025) [2026] KEELC 189 (KLR)", Case Analysis (2026). Not stated in the judgment (arises from ELC Case No. E130 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/189/eng@2026-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.