Mwamu t/a Mwamu & Company Advocates v Ago & 2 others (Miscellaneous Civil Application E012 of 2024) [2026] KEELC 3114 (KLR)
The bottom line
#A Kenyan court voided a lawyer's Kshs 150,284 fee award because the taxing officer ignored the clients' evidence of an agreed Kshs 60,000 fee, ordering a fresh taxation.
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 Taxing Officer erred in principle by failing to consider the Respondents' objections that the parties had agreed an all-inclusive fee which was paid in full
- 2.Whether the Taxing Officer erred by failing to take into account the sums of Kshs. 60,000 paid in cash and about Kshs. 10,300 paid via M-Pesa as legal fees
- 3.Whether this court should interfere with the Taxing Officer's ruling and, if so, whether it should re-assess quantum or remit the matter
Key legal issues
#Standard of interference with a Taxing Officer's decision on reference
The court interferes only where the Taxing Officer erred in principle; a manifestly excessive award may justify inferring such an error.
Relying on Kipkorir, Tito & Kiara and Kamunyori & Company Advocates, the court restated that a judge will not disturb a taxing officer's exercise of discretion absent an error of principle, and that such error can be inferred where the sum awarded is manifestly excessive or where the instruction fee is arrived at on wrong principles.
Whether the Taxing Officer's failure to consider the Respondents' replying affidavits was an error of principle
Yes. The Taxing Officer had a duty to consider the objections and express an opinion on them; her unexplained failure meant she did not exercise her powers judicially.
The Respondents had raised, in replying affidavits on record, the issues of an agreed all-inclusive fee of Kshs. 60,000 paid in full and further M-Pesa payments. The Taxing Officer gave no explanation for ignoring these objections. The court held that disregarding factors that ought properly to have been considered is failing to act judicially, as per Visser v. Gubb as cited in KTK Advocates.
Whether the court should itself determine the fee-agreement and payment issues on the reference
No; the proper course is remittance for fresh taxation before another Taxing Officer.
The error was not in the assessment of quantum but in the failure to consider relevant matters affecting quantum. Since the issues of whether there was a fee agreement and whether Kshs. 70,300 was paid were never considered or decided by the Taxing Officer, it would be improper for the judge to resolve them on reference; they fall to be determined in the first instance by a taxing officer.
Legal principles established
#- A judge on reference will not interfere with a Taxing Officer's decision unless there is an error of principle
- Failure by a Taxing Officer to consider objections raised on the record and to express an opinion on them is a failure to exercise discretion judicially, amounting to an error of principle
- Where a taxing officer commits an error of principle, the general practice is to remit the question of quantum to the taxing officer, though the judge retains a discretion to deal with the matter himself
Court orders
#- 1.The ruling and orders made by the Taxing Officer, Hon. Maureen Nyigei, on 21st November 2024, are set aside
- 2.The Applicant's bill of costs dated 30th August 2023 shall be taxed afresh before another Taxing Officer, who shall consider the Respondents' objections highlighted in the ruling
- 3.The costs of the reference shall be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Reference from the Taxing Officer's decision on an advocate-client bill of costs under the Advocates Act / Advocates (Remuneration) Order
Relief refused
#Determination by the court of the issues of the fee agreement and the payments of Kshs. 70,300
These issues had not been considered by the Taxing Officer and should be dealt with in the first instance by the Taxing Officer
Costs
The costs of the reference shall be in the cause
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.
In conclusion, the ruling and orders made by the Taxing Officer, Hon. Maureen Nyigei, on 21st November 2024, are set aside.
The Applicant’s bill of costs dated 30 th August 2023 shall be taxed afresh before another Taxing Officer, who shall consider the Respondents’ objections to the said bill of costs highlighted in this ruling.
The costs of the reference shall be in the cause.
due to her failure to consider the objections raised by the Respondents to the Applicant’s bill of costs, the Taxing Officer did not exercise her powers judicially, which is an error of principle.
it would not be in order for the court to deal with the issues on a reference. It would only be proper that the Taxing Officer deals with such issues in the first instance.
Issues in the judgment
#The judgment states the Respondents' submissions were filed on 27th January 2025, yet the reference application is dated 3rd December 2024 and judgment was delivered in May 2026 with further submissions dated 13th February 2026, creating chronological inconsistency
The coram is unusual: the ruling was written and signed at Nairobi by S. Okong'o J but delivered, dated and countersigned at Kisumu by E. Asati J
The Respondents pleaded inconsistent M-Pesa payment figures: Kshs. 10,480 in the replying affidavits versus Kshs. 10,300 in the reference
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwamu t/a Mwamu & Company Advocates v Ago & 2 others (Miscellaneous Civil Application E012 of 2024) [2026] KEELC 3114 (KLR)", Case Analysis (2026). ELC Misc Application No. E012 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3114/eng@2026-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.