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ELCDismissedNotice of motion dated 18th July 2025 (Eldama Ravine/Kabarnet ELCA matter; case number not stated in judgment)· [2026] KEELC 1502 (KLR)

Makomere t/a Wambeyi Makomere & Company Advocates v Boit (Environment and Land Miscellaneous Application E006 of 2025) [2026] KEELC 1502 (KLR)

Environment and Land Court
10 March 2026
LWL. N. Waithaka
2,588 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan judge cannot assess advocate-client fees; only the taxing master can, so advocates must follow the correct taxation process.

What this practically means

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Executive summary

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The applicant advocate filed a notice of motion dated 18th July 2025 seeking to have the court adopt an amended certificate of costs dated 15th January 2025 (taxed party-party costs of Kshs. 372,650/- in a matter in Eldama Ravine/Kabarnet) raised by one-half, declare the resulting fees of Kshs. 558,975/- as advocate-client costs, add 16% VAT of Kshs. 89,436/-, enter judgment against the respondent for Kshs. 648,411/-, and award interest from the date of taxation. The application was brought under Schedule 7 of the Advocates (Remuneration) Order, Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules. The respondent opposed, contending that the advocate-client relationship was still alive, that he had paid the advocate approximately Kshs. 350,000/- plus a further Kshs. 120,000/-, that the advocate had received Kshs. 336,909.22/- being costs in Kabarnet ELCA E003 of 2023, and that in any event a judge is not a taxing officer and cannot assess costs; he relied on the Court of Appeal decision in Kiiru v Kenya Ferry Services. The court applied the Supreme Court's decision in Kenya Airports Authority v Otieno Ragoti & Company Advocates, which held that assessment of advocate-client fees under Schedule VI Part B is for the Taxing Officer, who must exercise discretion guided by the prescribed scale rather than apply a mathematical formula to taxed party-party costs. Holding that the jurisdiction to assess advocate-client fees vests in the taxing master and not the court, the judge found the application to be based on a misapprehension of law and dismissed it with costs to the respondent on 10th March 2026.

Key legal issues

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Whether a judge can assess advocate-client costs by raising taxed party-party costs by one-half and adding VAT

Holding

No. Assessment of advocate-client costs is for the taxing master, who must exercise judicial discretion guided by the prescribed scale; the application was based on a misapprehension of law and was dismissed.

Reasoning

The court relied on the Supreme Court's decision in Kenya Airports Authority v Otieno Ragoti & Company Advocates, which held that under Schedule VI Part B a Taxing Officer must exercise discretion guided by the Part A scale and, where instruction fees in a party-party certificate are disputed, subject them to evaluation and judicial determination. It followed that assessment of advocate-client fees cannot be done by the judge through a notice of motion by simply multiplying the taxed party-party figure by one-half, as the applicant proposed.

p. 6

Legal principles established

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  • The jurisdiction to assess advocate-client fees vests in the taxing master and not the judge; in assessing fees under Schedule VI Part B the Taxing Officer exercises discretion guided by the prescribed scale in Part A rather than applying a mathematical formula to taxed party-party instruction fees

Court orders

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  1. 1.The notice of motion application dated 18th July 2025 is dismissed
  2. 2.Costs of the application awarded to the respondent
Jurisdiction invoked
Schedule 7 of the Advocates (Remuneration) Order, Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, 2010

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, "Makomere t/a Wambeyi Makomere & Company Advocates v Boit (Environment and Land Miscellaneous Application E006 of 2025) [2026] KEELC 1502 (KLR)", Case Analysis (2026). Notice of motion dated 18th July 2025 (Eldama Ravine/Kabarnet ELCA matter; case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1502/eng@2026-03-10

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