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ELRCPartially AllowedAppeal E018"B" of 2024· [2025] KEELRC 2627 (KLR)

Limted v Musimbi (Appeal E018"B" of 2024) [2025] KEELRC 2627 (KLR)

High Court of Kenya
30 September 2025
2,633 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The High Court in Kisumu partially allowed an advocate's challenge to a taxing officer's fees ruling, finding an error of principle on instruction fees but upholding the refusal of getting up fees.

What this practically means

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Executive summary

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The applicant, an advocate, moved the court by Chamber Summons dated 8th May 2025 under Rule 11 of the Advocates Remuneration Order 2014, seeking to set aside or vary a taxing officer's ruling of 29th April 2025 which awarded Kshs.50,000 as instruction fees and refused getting up fees on items 1 and 2 of a Party and Party Bill of Costs dated 11th March 2025, taxed out of costs following a judgment of Kshs.1,479,560 in an appeal. The applicant contended that the taxing officer erred in principle by applying the wrong schedule and ignoring the judgment sum as the basis of subject matter value, and by refusing getting up fees despite an uncontested claim. The respondent maintained the taxation was correct and discretionary. The court framed a single issue: whether the application was merited, namely whether the taxing officer erred in principle. Relying on Kipkorir Tito & Kiara, Joreth Ltd and Peter Muthoka, the court held that since the matter was an appeal whose subject matter value was ascertainable from the judgment, Rule 6(1)(b) of Schedule 6 applied, and the taxing officer's reliance on paragraph 2 and failure to consider the judgment constituted an error of principle vitiating the instruction fees award. However, getting up fees required certification under paragraph 3 of Schedule 6, and no such certification existed, so that limb of the taxing officer's ruling was affirmed. The ruling was set aside only as regards instruction fees, and the Bill was remitted to a different taxing officer, with each party bearing their own costs.

Key legal issues

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01

Whether the taxing officer erred in principle in awarding Kshs.50,000 instruction fees

Holding

Yes - the taxing officer relied on the wrong provision and failed to consider the judgment as the basis of subject matter value

Reasoning

The taxing officer applied paragraph 2 of the 6th Schedule (minimum Kshs.25,000) instead of Rule 6(1)(b), which applies to opposing an appeal where the value of the subject matter can be determined from the judgment. Following Peter Muthoka and Mohansons, once judgment is entered, its value governs instruction fees. The reliance on an incorrect provision amounted to an error of principle justifying interference.

p. 5
02

Whether the taxing officer erred in refusing getting up fees

Holding

No - the taxing officer's finding was affirmed

Reasoning

Getting up fees on appeal are governed by paragraph 3 of the 6th Schedule, which requires the respondent's appearance and certification by the court that the case is proper for a getting up fee in view of the extent or difficulty of the work. The record showed no such certification by the court, so the taxing officer's refusal could not be faulted.

p. 5

Legal principles established

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  • A court will only interfere with a taxing officer's award where it is based on an error of principle or is so high or low as to amount to an injustice
  • Where judgment has been entered, the judgment determines the value of the subject matter for purposes of instruction fees, not the pleadings

Court orders

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  1. 1.The taxing officer's Ruling dated 29th April, 2025 set aside as regards the assessment of instruction fees
  2. 2.The Party and Party Bill of Costs dated 11th March, 2025 remitted for assessment of the instruction fees by a different taxing officer
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Advocates Remuneration Order 2014Rule 11; Rule 6(1)(b) of Schedule 6; paragraph 3 of Schedule 6; Schedule 6A paragraph 2
  • Civil Procedure ActSections 3A, 3B, 14, 95; Section 72(1)
  • Civil Procedure RulesOrder 51 Rule 1; Order 21 Rule 1; Section 1B
  • Constitution of KenyaArticle 159(2)(d); Article 48

Cases cited (14)

  • Catholic Medical Mission Board V Mombasa Maize Millers Kisumu Ltd
    [2023] KEHC 23525 (KLR)
  • Peter Muthoka & another V Ocheing & 3 others
    [2021] eKLR
  • ShamShudin Khosia & others V Kenya Revenue Authority
    [2014] eKLR
  • Nguruman Ltd V Kenya Civil Aviation Authority & 3 Others
    [2014] eKLR
  • Republic V Egerton University Ex Parte Patel Maulik Prasum
    [2020] eKLR
  • Republic V Kenya Medical Supplies Authority & another; Medox Pharmaceuticals Ltd (Interested Party); Ex Parte Nairobi Enterprises Ltd
    [2019] eKLR
  • Delmonte Kenya Ltd V Kenya National Chamber of Commerce and Industry (KNCCI) Murang'a Chapter & 2 Others
    [2021] eKLR
  • Premchand Raichand Ltd & another V Quarry Services East Africa Ltd & another
    [1972] EA 162
  • Arthur V Nyeri Electricity Undertaking
    [1961] EA 492
  • Joreth Ltd V Kigano & Associates
    [2002] eKLR
  • Kipkorir Tito & Kiara Advocates V Deposit Protection Fund Board
    [2005] eKLR
  • Republic V Ministry of Agriculture & 2 Others Ex Parte Peter Muchiri W'Njuguna & others
    [2006] eKLR
  • Mohansons Food Distributors Ltd & another V Kenya Commercial Bank & another
    [2021] eKLR
  • Ochieng, Onyango, Kibet and Ohaga Advocates V Adopt Light Ltd
    HC Misc. 729 of 2006
On appeal from
null - taxing officer's ruling
null
Jurisdiction invoked
Rule 11 of the Advocates Remuneration Order 2014; Sections 14, 3A, 3B and 95 of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules

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, "Limted v Musimbi (Appeal E018"B" of 2024) [2025] KEELRC 2627 (KLR)", Case Analysis (2025). Appeal E018"B" of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2627/eng@2025-09-30

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