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ELRCPartially AllowedChamber Summons Application dated 15th April 2025 (Reference from taxation)· [2025] KEELRC 2828 (KLR)

Benard Odero & Company Advocates v Simiyu (Miscellaneous Application E216 of 2024) [2025] KEELRC 2828 (KLR)

High Court of Kenya
21 October 2025
2,658 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Client/Applicant lodged a Reference by Chamber Summons dated 15th April 2025 challenging the Taxation Ruling of Hon. E. Riany dated 24th September 2024, by which the Advocate/Client Bill of Costs dated 22nd July 2024 was taxed at Kshs. 661,351.01. The Applicant faulted the Taxing Officer for awarding instruction fees of Kshs. 300,000/= without demonstrating the basis of the assessment, for awarding inapplicable getting-up fees, for ignoring the agreed fee of Kshs. 130,000/=, and for failing to tax items 3-36 of the Bill. The Advocate/Respondent defended the taxation, contending the subject matter value of Kshs. 3,287,899.14 was properly discerned from the pleadings and Schedule 6A(j)(ii) correctly applied. The Court framed a single issue: whether the Taxing Officer misdirected herself in law and principle. Applying the settled principle that a judge interferes only upon an error of principle, the Court held that the failure to identify the subject matter value and to articulate the considerations informing the instruction fee assessment was such an error. It further held that, the underlying matter having been compromised without being heard, the Respondent was not entitled to getting-up fees, and that the Ruling was silent on items 3-36 and on how the total figure was computed. The Court allowed the Chamber Summons, set aside the Taxation Ruling on the Bill of Costs dated 22nd July 2024, and remitted it for taxation by a different Taxing Officer, with no order as to costs.

Key legal issues

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01

Whether the assessment of instruction fees at Kshs. 300,000/= was based on an error of principle

Holding

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.

Reasoning

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.

p. 5
02

Whether getting-up fees were payable

Holding

No - the Respondent was not entitled to getting-up fees since the underlying matter was compromised and never heard.

Reasoning

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.

p. 5
03

Whether the Taxing Officer failed to tax items 3-36 of the Bill of Costs

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 2.There will be no order as to costs.

Authorities

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Legislation

  • Advocates (Remuneration) OrderSchedule 6A(j)(ii)
  • Advocates (Remuneration) OrderSchedule 6, Part 2, Paragraph 2 (including provisos (ii) and (iii))
  • Advocates (Remuneration) OrderSchedule VI (formula for instruction fees)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (4)

  • Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board
    [2005] eKLR
  • Arthur v Nyeri Electricity Undertaking
    [1961] EA 492
  • Joreth Ltd v Kigano & Associates
    [2002] 1 E.A. 92
  • First American Bank of Kenya Ltd v Gulab P Shah & Others
    [2002]
Jurisdiction invoked
Reference against a Taxing Officer's decision under the Advocates (Remuneration) Order

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, "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.