Benard Odero & Company Advocates v Simiyu (Miscellaneous Application E216 of 2024) [2025] KEELRC 2828 (KLR)
The bottom line
#Kenya's High Court threw out a lawyer's Kshs. 661,351 fee bill because the taxing officer never explained how the figures were calculated.
What this practically means
#Executive summary
#Key legal issues
#Whether the assessment of instruction fees at Kshs. 300,000/= was based on an error of principle
Yes - the Taxing Officer failed to identify the value of the subject matter and to set out the considerations informing the assessment, amounting to an error of principle justifying interference.
The Court noted the dispute arose from a settlement agreement of Kshs. 3,076,202.74, which constituted the subject matter value. The Taxing Officer merely cited Schedule 6A(j)(ii) and awarded Kshs. 300,000/= without demonstrating how the prescribed formula was applied or giving any discernible basis for the figure, making it impossible to verify whether relevant factors were considered.
Whether getting-up fees were payable
No - the Respondent was not entitled to getting-up fees since the underlying matter was compromised and never heard.
The dispute originated from a settlement agreement and the Misc. Application and Grounds of Opposition were compromised without being fully argued. Under Schedule 6, Paragraph 2(ii), no getting-up fee is chargeable until the case has been confirmed for hearing; consequently the award of Kshs. 100,000/= was erroneous.
Whether the Taxing Officer failed to tax items 3-36 of the Bill of Costs
Yes - the Ruling did not indicate how these items were addressed, and the basis for the total of Kshs. 661,351.01 was not discernible.
The Court found the Taxation Ruling silent on how items 3-36 were assessed, and it was unclear how the total was computed or whether the instruction and getting-up fees were incorporated, compounding the errors of principle.
Legal principles established
#- A judge on a reference will not interfere with a Taxing Officer's discretion unless the Taxing Officer erred in principle; questions of quantum are for the taxing officer save in exceptional cases.
- The value of the subject matter for taxation is to be determined from the pleadings, judgment or settlement; failing that, the taxing officer may exercise discretion using relevant factors.
- It is an error of principle to take into account irrelevant factors or to omit to consider relevant factors in taxation.
- No getting-up fee is chargeable where the case was never heard or prepared for trial, as where matters were compromised by consent.
Court orders
#- 1.The Taxation Ruling with respect to the Bill of Costs dated 22nd July 2024 is set aside and remitted for taxation by a different Taxing Officer.
- 2.There will be no order as to costs.
- Jurisdiction invoked
- Reference against a Taxing Officer's decision under the Advocates (Remuneration) Order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benard Odero & Company Advocates v Simiyu (Miscellaneous Application E216 of 2024) [2025] KEELRC 2828 (KLR)", Case Analysis (2025). Chamber Summons Application dated 15th April 2025 (Reference from taxation). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2828/eng@2025-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.