MCM Advocates LLP v Waso Trading Co. Ltd & another (Miscellaneous Application E034 of 2024) [2026] KEELC 4763 (KLR)
The bottom line
#The High Court in Meru ruled that lawyers' fees must be based on the value stated in court pleadings, not lowered by access-to-justice arguments.
What this practically means
#Executive summary
#Key legal issues
#Whether failure to issue a notice of objection to taxation vitiates the reference
It does not, where the taxing officer's ruling already contains the reasons for taxation; requiring such a notice would be pedantic and the law does not concern itself with trifles.
Rule 11(1) of the Advocates Remuneration Order requires a notice of objection so the taxing officer may supply reasons for taxation. Modern rulings, including the impugned one, already contain the reasons, so seeking them afresh would be an exercise in vanity. The court invoked de minimis non curat lex, Article 159(2)(d) and Article 10(2) of the Constitution, and urged the Law Society of Kenya to propose amendment of Rule 11(1).
Whether the taxing officer erred in disregarding the value of the subject matter disclosed in the amended plaint
Yes. Since there was no judgment in the primary suit, the pleadings—here the amended plaint—governed the ascertainment of the value of the subject matter; demanding a valuation report was an error of principle.
Following Peter Muthoka v Ochieng, before judgment the pleadings form the basis of the subject matter value. The amended plaint disclosed Kshs 3,132,000,000/=. A valuation report is evidence, not a pleading (Superior Homes), and could only inform instruction fees if deployed in a judgment. The taxing officer's insistence on a valuation report misapprehended the law and constituted an error of principle vitiating the certificate of taxation.
Whether instruction fees diminish according to the stage or manner of conclusion of the suit
No. Instruction fees accrue on receipt of instructions and are independent and static; the stage of proceedings only permits percentage discounts, not abandonment of the value benchmark.
Relying on Joreth Ltd v Kigano & Associates, the court held instruction fees are charged once and are unaffected by the stage the suit reached. The taxing officer's finding that instruction fees are not automatically pegged on the value in the pleadings where a matter is determined summarily was erroneous; the benchmark remains the value of the subject matter, subject only to prescribed percentage discounts.
Whether the taxing officer's use of access-to-justice considerations to lower fees was permissible
No. While the right of access to justice is guaranteed, it cannot be used to deprive an advocate of rightful instruction fees or to justify underpayment.
The court accepted that every person is entitled to access to justice, but held that a litigant who retains an advocate must be prepared to pay fees per the retainer or the Advocates Remuneration Order. Using access to justice to underpay counsel disenfranchises the advocate, risks depriving the profession of new recruits and would injure the profession and the economy.
Whether the taxing officer breached the doctrine of stare decisis by disregarding a related ruling of Hon. Justice Nzili
Yes. The taxing officer was given the ruling confirming taxation at Kshs 82,176,731/= in a related matter but neither referenced nor considered it, reflecting an error of principle and unequal treatment.
The court cited the Supreme Court in Asanyo v Attorney-General, reproducing Dodhia v National & Grindlays Bank on the importance of stare decisis. A co-counsel in the same matter obtained a taxation of Kshs 82,176,731/= while the applicant was awarded Kshs 481,825/=. Treating two advocates in the same matter differently offended Articles 10(2) and 27(1) and (2) of the Constitution on equality and non-discrimination.
Legal principles established
#- Where the value of the subject matter is discernible from the pleadings before judgment, the taxing officer must take it into account; a valuation report is not a pleading and its absence does not displace the value in the pleadings.
- Instruction fees are an independent and static item, accrued on receipt of instructions, not diminished by the stage the suit reached or the manner of its conclusion.
- The taxing officer's discretion on instruction fees is exercised only after engaging the statutorily commanded starting point of pleadings, judgment or settlement, used disjunctively and mandatorily.
- Where the ruling on taxation already contains the reasons for taxation, a notice of objection seeking those reasons is unnecessary and its absence does not vitiate a reference.
- The right of access to justice cannot be deployed to underpay an advocate's rightfully earned instruction fees.
Court orders
#- 1.The Reference dated 16.06.2026 be and is hereby Allowed
- 2.The Ruling of the taxing officer rendered on the 04.06.2026 and the consequential certificate of taxation be and are hereby set aside
- 3.The advocate-client bill of costs dated the 27.08.2024 be and is hereby remitted to the taxing officer for purposes of fresh taxation, taking into account the salient features pointed out in the body of the ruling
- 4.Costs of the reference be and are hereby awarded to the Applicant
- 5.The costs be and are hereby assessed in the sum of Kshs. 30,000/= only
- On appeal from
- Taxing Master (Hon. Evalyne Wacera Ndegwa – SRM)
- Jurisdiction invoked
- Rule 11 of the Advocates Remuneration Order, 2014 and Section 51 of the Advocates Act, Chapter 16, Laws of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "MCM Advocates LLP v Waso Trading Co. Ltd & another (Miscellaneous Application E034 of 2024) [2026] KEELC 4763 (KLR)", Case Analysis (2026). Reference dated 16.06.2026 (Chamber Summons under Rule 11 of the Advocates Remuneration Order, 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4763/eng@2026-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.