Norman Asega t/a N.K. & Co. Advocates v Ngaruiya & another
The bottom line
#A Kenyan court threw out KES 2.9 million in legal fees as excessive and ordered the bill to be taxed afresh before a different taxing officer.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court should interfere with the taxing officer's decision
- 2.If (a) is in the negative, whether judgment should be entered against the clients
Key legal issues
#Whether the taxing officer erred in principle in assessing instruction fees (items 1 and 3) at Kshs. 950,000 each
Yes - having found the value of the subject matter unascertainable, she pegged it at Kshs. 50,000,000 without any valuation report, pleadings, judgment or settlement, and overlooked the work actually done since the suit had never proceeded to hearing
The taxing officer recognised the value was unascertainable yet adopted a Kshs. 50,000,000 valuation with no evidential basis. She was then required to exercise discretion judiciously under rule 16 and the ARO principles, taking account of work done up to taxation. The award of Kshs. 950,000 for a matter never heard was so excessive as to indicate an error of principle, per First American Bank and Kenya Airports Authority.
Whether a second instruction fee on the counterclaim was properly awarded
Yes - a counterclaim is a separate and distinct suit attracting its own instruction fees; the clients' objection on this ground failed
The court disagreed with the clients that the plaint and counterclaim constituted one suit, following Kaur alias Kaur v Suri. However, because the counterclaim instruction fee was drawn from the flawed item 1 assessment, the Kshs. 950,000 figure itself could not stand and fell with the error on item 1.
Whether getting-up fees (item 5) were properly allowed
The allowance of getting-up fees was proper in principle since the matter was confirmed for hearing and adjourned at the court's instance, but the quantum of Kshs. 633,333 was excessive as one-third of the inflated instruction fees
Cause lists showed the matter was scheduled for hearing on 8 May 2023 and 19 October 2023 after pre-trial directions and adjourned at the court's instance, so the advocate prepared the matter for trial and no error lay in considering the item. But the one-third computation derived from the excessive instruction fees, so the item was tainted by the same error of principle.
Whether the taxing officer's correction of an arithmetical error on 29 October 2025 under the slip rule was lawful
Yes - the correction under sections 99 and 100 of the Civil Procedure Act was to give effect to the true taxed sums and could even have been made suo moto; no error of law or fact
The slip rule permits correction of clerical or arithmetical mistakes reflecting the court's manifest intention without altering substance. The taxing officer's review merely corrected an arithmetic error, did not affect the substance of the ruling and required no new hearing, consistent with Outa v Okello.
Legal principles established
#- A court should not interfere with a taxing officer's decision unless the decision was based on an error of principle or the fee awarded was so obviously excessive as to indicate a mistake of principle
- Where the value of the subject matter is unascertainable, the taxing officer must exercise discretion fairly and reasonably, guided by rules and principles of law, and must take into account the work actually done by the advocate
- A counterclaim is a separate and distinct suit attracting its own instruction fees
- The slip rule permits correction only of errors apparent on the face of a decision that do not change its substance or the court's clear intention
Court orders
#- 1.The chamber summons dated 3 March 2026 is allowed, with each party bearing their own costs
- 2.The advocate-client bill of costs dated 5 May 2025 is remitted for taxation before a taxing officer other than Hon. Victoria Ochanda (Ms.) Deputy Registrar
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 11 of the Advocates (Remuneration) Order - reference against a taxing officer's decision to a judge of the High Court
Relief refused
#Entry of judgment for KES 2,915,623 with interest at 14% per annum and issuance of a decree for execution (advocate's notice of motion dated 13 November 2025)
The court found the taxing officer's decision on items 1, 3 and 5 excessive and based on errors of principle, set it aside and remitted the bill for fresh taxation; the judgment-entry motion was not granted in the final orders
Costs
Each party to bear their own costs of the chamber summons dated 3 March 2026; in the body of the ruling the court stated 'Each party shall bear their respective costs.' The advocate's notice of motion seeking costs of the application was not addressed in the final orders.
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.
The chamber summons dated 3 March 2026 is allowed, with each party bearing their own costs.
The advocate-client bill of costs dated 5 May 2025 is remitted for taxation before a taxing officer other than Hon. Victoria Ochanda (Ms.) Deputy Registrar.
a court should refrain from intervening in decisions made by the taxing officer concerning taxation unless it can be demonstrated that the decision was based on an error of principle or that the fee awarded was so obviously excessive as to indicate a mistake of principle.
This court determines that the instruction fees of Kshs. 950,000/- awarded to the advocate by the taxing officer is evidently excessive and does justify an inference that it was based on an error of principle.
an advocate is entitled to claim the minimum instruction fees but he cannot properly claim fees in respect of work he had not done. The entitlement under the instruction fees grows as the matter proceeds.
the Counterclaim was a separate and distinct suit and hence same [counterclaim] attracted instruction fees.
Issues in the judgment
#Date of slip-rule correction stated inconsistently as 2025 and 2026
Remittal ordered for items 1, 2 and 5 although grievances concerned items 1, 3 and 5
Affidavit date inconsistent with application date
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Norman Asega t/a N.K. & Co. Advocates v Ngaruiya & another", Case Analysis (2026). Environment and Land Miscellaneous Case E042 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5945/eng@2026-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.