Twiga Chemical Industries Limited v Gichuki King’ara & Co. Advocates

the second application dated 10th April 2018 by the appellant sought to set aside the instruction Page 2 of 27

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fees of Kshs.3,052,625.00 awarded to the respondent which it deemed excessive. In that ruling, the learned judge faulted the decision of the taxing master awarding the respondent instruction fees of Kshs.3,052,625.00 which he deemed manifestly low and for failure to award getting up fees to the respondent and remitted the bill for taxation before a different taxing officer. The Judge dismissed the appellant’s reference challenging the taxation. 2. The genesis of the appeal can be traced to a client-advocate relationship between the parties. In 2006, Twiga Chemical Industries Limited instructed the firm of Gichuki King’ara & Co. Advocates to institute proceedings against Game Ranching Limited for recovery of land known as L.R No. 7590/4, measuring approximately 497 acres. Pursuant to those instructions, the respondent filed HCCC No. 684 of 2006 on 3rd December 2006 seeking, inter alia, a permanent injunction restraining Game Ranching Limited from interfering with the appellant’s ownership and possession of the said property, eviction of the defendant, a declaration that the lease issued to the defendant was null and void, cancellation of the same from the land records, damages for trespass and costs. 3. The defendant, Game Ranching Limited, entered appearance Page 3 of 27

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through Kilonzo & Company Advocates on 30th January 2007 and Page 4 of 27

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subsequently filed a statement of defence and counterclaim on 13 th February 2007. 4. In its defence, the defendant denied the plaintiff’s ownership claims, pleaded limitation under the Limitation of Actions Act, and asserted that it had been in adverse possession of the suit property since 1964, claiming entitlement to the unexpired term of the leasehold. 5. Before the matter could proceed for trial, the respondent ceased acting for the appellant, and in 2017 filed an Advocate-Client Bill of Costs dated 24th August 2017 claiming Kshs.77,163,514.00 for services rendered in the said suit. The bill was taxed by the Deputy Registrar, who delivered a ruling on 13 th March 2018 awarding instruction fees of Kshs.3,052,625.00 (which she increased by onehalf), declined to award getting up fees and taxed the total bill at Kshs.5,319,992.50. 6. Aggrieved, the respondent filed a reference through a chamber summons dated 3rd April 2018, filed under Rule 11 of the Advocates (Remuneration) Order and Sections 3 and 3A of the Civil Procedure Act. In that application, the respondent sought to set aside the bill of costs taxed on 13 th March 2018 contending that the award of instructions fees in the sum of Page 5 of 27

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Kshs.3,052,625.00 was manifestly low and argued that the taxing officer was wrong in not awarding the respondent getting up fees. Page 6 of 27

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7. The appellant, also aggrieved, filed its own chamber summons dated 10th April 2018 under Rule 11 of the Advocates (Remuneration) Order seeking to set aside the taxing master’s award and for reassessment of instruction fees, arguing inter alia, that the award of instructions fees in the sum of Ksh.3,052,625.00 was excessive and an award of Kshs.30,000.00 would have been appropriate. The application was supported by an affidavit sworn by Anantharaman Ramamurthy, who deponed that the taxing master had erred in principle by relying on erroneous acreage and valuation of the property, and by considering extraneous documents not tendered in evidence. 8. The learned Judge upheld the application dated 3 rd April 2018 by the respondent holding that the taxation of instructions fee at Kshs.3,052,625 was manifestly low and that the taxing officer erred in not awarding getting up fees since the suit had already been set down for hearing. The judge dismissed the application dated 10th April 2018 by the appellant. 9. Being aggrieved by the said findings, the appellant filed this appeal and vide a memorandum of appeal dated 19 th June 2020 impugned the said decision on six grounds, contending that the learned judge erred in law and fact by: failing to appreciate that an email dated Page 7 of 27

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22nd April 2016 was never tendered in evidence; wrongly adopting the sum Page 8 of 27

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stated therein as the value of the property for computation of instruction fees; imposing a value based on an extraneous document to the undue advantage of the respondent; awarding getting-up fees despite the suit never being confirmed for trial; failing to treat the parties with equality before the law; and disregarding the fact that the appellant’s application dated 10th April 2018 was unopposed. The appellant prays that the ruling and orders of the Environment and Land Court be set aside and substituted with an order allowing its application dated 10 th April 2018 with costs. 10. Mr. Fred Ngatia, Senior Counsel, for the appellant in arguing the appeal, relied on his written submissions dated 26 th November 2024. Counsel submitted at length that the learned Judge of the Environment and Land Court erred both in law and fact in upholding the taxing master’s award of Kshs. 3,052,625.00 as instruction fees and in dismissing the appellant’s reference. 11. Senior Counsel began by tracing the background of the dispute, noting that the appellant, Twiga Chemical Industries Limited, is the registered proprietor of land parcel L.R No. 7590/4 situated in Machakos County. He recounted that the appellant had leased the property to the Right Honourable Christian Mary Baroness Hesketh Page 9 of 27

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on 4th October 1962 for a term of 99 years, expressly prohibiting Page 10 of 27

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assignment or subletting without consent. Contrary to those terms, the lessee purported to transfer the lease to John Norman Hopcraft on 22nd April 1964, who in turn transferred it to Game Ranching Limited without the appellant’s consent. 12. Aggrieved, the appellant instructed Gichuki King’ara & Co. Advocates, recovery of the land. to Pursuant the institute to those respondent, proceedings for instructions, the respondent filed HCCC No. 684 of 2006 seeking injunctive relief, eviction, cancellation of the lease, damages for trespass, and costs. The defendant filed a defence and counterclaim dated 13 th February 2007 asserting adverse possession and seeking a declaration that the unexpired leasehold term vested in it. The matter was later transferred to the Environment and Land Court as ELC Suit No. 555 of 2016, and subsequently to Machakos as ELC No. 189 of 2018, which remains pending. 13. Mr. Ngatia submitted that the sole issue for determination before the ELC from the pleadings was the legitimacy of the leasehold term held by Game Ranching Ltd as against the valid ownership held by the appellant. That before the hearing, the appellant withdrew instructions from the respondent, who then filed an Advocate-Client Bill of Costs dated 24th August 2017 claiming Page 11 of 27

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Kshs.77,163,514.00. The taxing master, by a ruling dated 13th March 2018, awarded Page 12 of 27

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Kshs.3,052,625.00 as instruction fees and taxed the bill at Kshs.5,319,992.50. Both parties filed references - the respondent’s dated 3rd April 2018 and the appellant’s dated 10th April 2018 which were heard together. The learned judge, E. Obaga, J, by a ruling delivered on 11th June 2020, upheld the reference by the respondent and dismissed one by the appellant. 14. Counsel argued that the learned Judge erred in deriving the value of the subject matter from an email dated 22 nd April 2016, which was neither tendered in evidence nor part of the pleadings. He submitted that the Judge was debarred from considering the email as evidence, citing the Court of Appeal decision in Kenneth Nyaga Mwige vs Austin Kiguta & 2 Others [2015] eKLR which held that a document becomes evidence only when produced and admitted as an exhibit. He further relied on Sofie Feis Caroline Lwangu Billiah vs Benson Wafula Ndote [2022] eKLR and Matiangi vs Kisii Bottlers Ltd & Another [2021] eKLR to reinforce the view that documents merely marked for identification do not form part of the evidentiary record. Counsel contended that Page 13 of 27

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the email was not part of the pleadings as defined under Section 2 of the Civil Procedure Act and that the court was bound by the parties’ pleadings, Page 14 of 27

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citing David Sironga Ole Tukai vs Francis Arap Muge & 2 Others [2014] eKLR. 15. He argued that by relying on the email, the Judge ventured outside the pleadings and violated the rules of evidence. Further, Mr. Ngatia submitted that the email constituted communication between advocate and client, Section 134 (1) privileged protected under of the Evidence Act and relied on Manani Lilan & Mwetich Co. Advocates vs Veronica Sum [2022] eKLR and the English case of Conlon vs Conlons Ltd [1952] 2 All ER 462, emphasizing that privilege ensures clients can communicate freely with counsel. He also cited King Woolen Mills Ltd vs Kaplan & Straton Advocates [1993] eKLR, where the court held that the fiduciary relationship between advocate and client demands confidentiality even after termination of the retainer. 16. On the issue of getting-up fees, counsel submitted that the learned judge erred in faulting the taxing officer for not awarding getting up fees and remitting the matter back for taxation again despite the suit not having been confirmed for hearing. He referred to Schedule 6 (2) of the Advocates (Remuneration) Order, which Page 15 of 27

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expressly provides that getting-up fees are chargeable only after a case has been confirmed for hearing. He relied on C. N. Kihara Maendeleo Page 16 of 27 & Co. Advocates vs

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ya Wanawake Organization [2021] eKLR and S. O. Arama vs Family Bank Ltd [2022] eKLR, where courts held that gettingup fees cannot be awarded unless the matter has been confirmed for trial. Counsel argued that the correspondence relied upon by the Judge merely showed attempts to fix a hearing date and did not prove confirmation for hearing. 17. Lastly, counsel submitted that the learned Judge erred in failing to consider the appellant’s application dated 10 th April 2018, which was unopposed. He cited Iseme Kamau & Maema & Co. Advocates vs Concord Insurance Co. Ltd [2012] eKLR, where the court held that an uncontested application ought to be allowed as prayed. He argued that the Judge should have treated the appellant’s reference as unopposed and granted the relief sought. 18. In conclusion, Mr. Ngatia, SC urged the Court to allow the appeal, set aside the ruling of the Environment and Land Court delivered on 11th June 2020, and order that the taxation be undertaken afresh in accordance with the provisions of the Advocates (Remuneration) Order. 19. Conversely, the respondent vide Mr. King’ara Advocate opposed Page 17 of 27

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the appeal and relied on his written submissions dated 16th January 2025. Counsel submitted that the appeal was misconceived, incompetent, Page 18 of 27

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and devoid of merit, urging the court to uphold the ruling of E. Obaga, J delivered on 11th June 2020. Counsel began by outlining the background of the matter, noting that the respondent had represented the appellant in HCCC No. 684 of 2006, now ELC No. 555 of 2016, and that the dispute arose from an advocateclient bill of costs dated 24th August 2017 for professional services rendered in that suit. The taxing master, by a ruling dated 13th March 2018, taxed the bill at Kshs.5,319,992.50, prompting both parties to file references under Rule 11 of the Advocates (Remuneration) Order, the respondent’s dated 3 rd April 2018 and the appellant’s dated 10th April 2018. The learned judge, after hearing both applications, allowed the respondent’s reference and dismissed the appellant’s, ordering re-taxation before a different Deputy Registrar on two items: instruction fees and getting-up fees. 20. Mr. King’ara submitted that the learned judge’s ruling was sound in law and fact. On the value of the subject matter, counsel argued that the appellant was approbating and reprobating by disowning its own email dated 22nd April 2016, which disclosed the value of the suit property as Kshs.1,450,000,000. He contended that the email was properly filed before the taxing master as part of the Page 19 of 27

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respondent’s supporting documents pursuant to Rules 13 and 13A of the Page 20 of 27

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Advocates (Remuneration) Order, which empower the taxing officer to call for and consider supporting documents in taxation. The appellant, he noted, never objected to the email during taxation, nor raised any issue regarding its admissibility before the superior court below. Counsel argued that the appellant could not raise the issue for the first time on appeal, as doing so would offend the jurisdictional limits of the Court of Appeal. 21. He further submitted that, in the absence of a determinable value in the pleadings, judgment or settlement, the taxing master was entitled to consider any relevant document to estimate the value of the subject matter. He relied on Isaac Maina Kamau vs Rahab Wangare Gachiengo & Another [2017] eKLR, Masore Nyang’au & Co. Advocates vs Kensalt Ltd [2019] eKLR, Unlimited Safaris (Africa) Ltd vs Muchanga Investments Ltd [2017] eKLR, and Virginia Shaw & Co. Advocates vs Minar Katherine Holroyd & Another [2022] eKLR, all of which affirm that a taxing officer may rely on documents other than pleadings to determine value. Counsel emphasized that the email was authored by the appellant Page 21 of 27

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itself and was therefore a relevant and reliable indicator of value. 22. Addressing the appellant’s claim of advocate-client privilege, Mr. King’ara argued that the issue was being raised for the first time and Page 22 of 27

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was not part of the memorandum of appeal. He submitted that privilege cannot be invoked to bar an advocate from relying on correspondence exchanged with a client to prove a retainer or establish the value of the subject matter. Citing Virginia Shaw & Co. Advocates vs Minar Katherine Holroyd & Another (supra) counsel maintained that privilege protects confidentiality from third parties, not between the advocate and client in disputes arising from their professional relationship. 23. On the getting-up fees, counsel submitted that the learned Judge correctly found that the matter had been set down for hearing and that issues had been joined by the pleadings. He referred to Paragraph 2 of Schedule 6 of the Advocates (Remuneration) Order 2014. He relied on Shamshudin Khosla & Others vs Kenya Revenue Authority [2011] eKLR, where Ojwang, J. explained that getting-up fees relate to preparatory steps taken by counsel in readying a case for trial, and on Nguruman Ltd vs Kenya Civil Aviation Authority & 3 Others [2014] eKLR, where Lenaola , J. held that the fee is earned once issues are joined, regardless of whether the matter proceeds to full hearing. 24. Counsel argued that the record Page 23 of 27 demonstrated that witness

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statements had been filed, correspondences the case Page 24 of 27 confirmed for trial, and

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exchanged fixing hearing dates. The taxing master, he contended, erred in rejecting the item, and the learned judge rightly corrected that error. 25. On ground 6 of the appeal, that the appellant’s application dated 10th April 2018 was unopposed, counsel submitted that both the respondent’s and the appellant’s applications were heard together and sought re-taxation of the same items - instruction fees and getting up fees. The learned judge, having allowed the respondent’s application, could not logically allow the appellant’s as well. He argued that the respondent’s application served as a response to the appellant’s, and the court properly treated them as contemporaneous. The appellant’s claim that the respondent failed to file a response was therefore unfounded. 26. Mr. King’ara further contended that the appeal was fatally defective and incompetent. He invoked Rule 11(3) of the Advocates (Remuneration) Order, which requires that any person aggrieved by a judge’s decision on a reference must obtain leave before appealing to the Court of Appeal. He argued that the appellant had not sought or obtained such leave, rendering the appeal incompetent. He cited Nyutu Agrovet Ltd vs Airtel Networks Kenya Ltd [2019] Page 25 of 27

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eKLR, where the Supreme Court held that a right of appeal must be conferred Page 26 of 27

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by statute or the Constitution, and that there is no automatic right of appeal from taxation references. 27. Counsel also pointed out that the record of appeal omitted mandatory documents, including proceedings from the High Court, contrary to Rule 89 of the Court of Appeal Rules, and relied on Kemfro Africa Ltd t/a Meru Express Services (1976) & Another vs Olive Lubia & Another [1983] eKLR and Bwana Mohamed Bwana vs Silvano Buko Bonaya & 2 Others [2015] eKLR, in which appeals were struck out for failure to include essential documents. 28. Lastly, Mr. King’ara urged the Court to find that none of the grounds in the memorandum of appeal had merit. He submitted that the learned judge’s ruling was consistent with established principles of taxation and judicial discretion, and that the appeal was speculative, incompetent, and unmerited. Counsel prayed that the appeal be struck out or dismissed with costs to the respondent. 29. Senior Counsel, Mr. Ngatia in rejoinder to the aforesaid preliminary objections regarding alleged failure by the appellant to seek leave to file the appeal, and failure to file the full record of the proceedings before the trial judge, referred the court to the Page 27 of 27

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supplementary record of appeal dated 19th December 2024 which he told the court had been duly filed. The appellant submitted that leave was orally sought before Page 28 of 27

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the High Court by counsel for the appellant upon delivery of the Ruling and that is evident from the record of proceedings at the High Court dated 11th June 2020 before this Court. That in terms of Rule 11(3) of the Advocates Remuneration Order, it was sufficient to seek leave verbally as they had done before the superior court. Furthermore, the entire record of the proceedings before the High Court was duly filed vide the supplementary record of appeal dated 19th December 2024. That the objections by the respondent lacked merit and be disregarded by this Court. 30. This is an appeal against a decision of a judge upon a reference in taxation and is akin to a second appeal and therefore this Court confines itself to matters of law only unless it is shown that the courts below considered matters they should not have considered, or failed to consider matters they should have considered, or looking at the entire decision, it is perverse. The duty of this Court in second appeals is well settled. In Kenya Breweries Ltd vs Godfrey Odoyo [2010] eKLR, the Court of Appeal stated: “This Court will not interfere with the findings of fact by the trial court unless it is shown that the court acted on no evidence, misapprehended the evidence, or applied wrong principles in reaching its conclusion.” Page 29 of 27

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Having considered the record, the rival submissions, and the applicable law, the issues for determination are capsulated thus: (a) Whether the appeal stands to be struck out for want of leave under Rule 11(3) of the Advocates (Remuneration) Order and for failure to file the lower court record under Rule 89 of Court of Appeal Rules. (b) Whether the learned Judge erred in law by allowing the application by the respondent seeking setting aside of the taxation of instructions fees at Kshs.3,052,625.00 for being manifestly low, and remitting the matter for taxation before a different taxing officer. (c) Whether the learned Judge properly upheld the award of getting-up fees in the circumstances. (d) Whether the learned judge erred in failing to treat the application dated 10th April 2018 as an undefended application. 31. With regard to the first issue of the competence of the appeal raised by the respondent on two fronts i.e failure to obtain leave before filing the appeal and failure to file the record of proceedings of the lower court, Rule 11(3) of the Advocates (Remuneration) Order requires that any person aggrieved by a judge’s decision on a Reference must obtain leave before appealing to the Court of Appeal as follows: “Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal”. The supplementary record of appeal does show that leave was Page 30 of 27

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verbally sought before the High Court by Ms. Nyaga Advocate on 11th June Page 31 of 27

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2020 and was granted hence the objection is without merit. Rule 41(1) of the Court of Appeal Rules provides: In a civil matter“where an appeal lies with the leave of the superior court, application for such leave may be made (i) informally at the time when the decision against which it is desired to appeal is given; or (ii) by motion or chamber summons according to the practice of the superior court, within fourteen days of such decision” The Court of Appeal in Museum View Office Suites Limited vs Muri Mwaniki & Wamiti Advocates [2025] KECA 1962 (KLR) affirmed this position. 32. Furthermore, the supplementary record of appeal at pages 75 to 89 incorporate the proceedings of the High Court. We are satisfied that the appellant did not violate Rule 89 of the Court of Appeal Rules as alleged by the respondent. The record of appeal and the supplementary record of appeal filed by the appellant constitute a full and comprehensive record of appeal with all proceedings and documents before the taxing master and the High court. In addition, Rule 86 of the Court of Appeal Rules provides that a person affected by an appeal may, at any time, either before or after the institution of the appeal, apply to the court to strike out Page 32 of 27

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the notice or the appeal on Page 33 of 27

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the ground that no appeal lies or some essential step has not been taken within a period not exceeding 30 days from the service of the notice of appeal or record of appeal as the case may be. The aforesaid objections were therefore brought out of time in any event. The objections therefore lack merit and are dismissed. 33. There is another issue which we deal with at this early stage, and that is the argument by Mr. Ngatia, SC that the application dated 10th April 2018 was unopposed and should have been allowed. Firstly, a court is not bound to allow an application merely because the other party has not opposed it. When a party declines or fails to reply to a motion, that party divests himself of the right to be heard on it but that does not mean that the application must succeed. A court must still be persuaded that it is permissible in law to allow such application. In our case, although there was no direct reply to the motion dated 10 th April 2018, the Advocate had a competing application and given that they were heard together, one application could very well be deemed to be a response to the other. In those circumstances, we find no basis for the argument that the application dated 10th April 2018 ought to have been allowed automatically. 34. Moving on to the substantive issues, the Court is guided by Page 34 of 27

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well-established authorities from both the High Court and this Court Page 35 of 27

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on the scope of judicial interference with a taxing master’s discretion. The leading precedent remains Premchand Raichand Ltd & Another vs Quarry Services of East Africa Ltd & Another [1972] EA 162, where the Court held that a judge may only interfere with taxation if the taxing officer made an award that is manifestly excessive or inadequate. 35. With regard to the instructions fees both parties had challenged the taxing officer’s decision and sought setting aside the same which the learned judge allowed. The appellant is aggrieved by the holding that an email sent by the appellant to the respondent disclosing the value of the subject matter to be Ksh.1,450,000,000.00 is important in determining the instructions fees. The learned Judge stated: “There is no contention that the amount of the suit property could not be ascertained from the pleadings. In that case, the taxing officer was left to exercise her discretion in determining the value of the suit property.” The Judge relied on the Court of Appeal case of Joreth Limited vs Kigano & Associates which was quoted in the case of Peter Muthoka & Another vs Ochieng & 3 Others (2019) eKLR Page 36 of 27

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where the court held: “we would at this stage, point out that the value of the subject matter of the suit for the purposes of taxation of a bill of costs ought to be determined from the pleadings, Page 37 of 27

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judgment or settlement (if such be the case) but if the same is not ascertainable, the taxing officer is entitled to use his discretion to assess instruction fee as he considers just, taking into account, amongst other matters, the nature and importance of the cause or matter, the interest of the parties, the general conduct of the proceedings, and direction by the trial judge and all other relevant circumstances.” 36. The Judge noted that attention had been drawn to the taxing officer to an email which the appellant wrote to the respondent indicating that the suit property had been valued by Lloyd Masika at Kshs.1,450,000,000.00. The judge then held: “Even though the email was not part of the pleadings and it was not meant to be, it still remained an important document to the parties and the taxing officer should have used it for purposes of assessing instruction fees”. 37. Mr. Ngatia, SC submitted that the authorship of this email is contested and further faulted its use to determine the value of the property. He went on to submit that in any event it was a document protected by client-advocate privilege and was not filed as pleadings in the matter. Counsel for the appellant embellished this submission by citing the case of Kenneth Nyaga Mwige (supra) as follows: “How does a document become a part of the evidence for the case? Any document filed and/or marked for identification by either party, passes through three stages before it is held proved or disproved. First, Page 38 of 27

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when the document is filed, the document though on the file does not become part of the judicial record. Second, when the documents are tendered or produced in evidence as an exhibit by either party and Page 39 of 27

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the court admits the documents in evidence, it becomes part of the judicial record of the case and constitutes evidence….” Senior Counsel further relied on the Nigerian case of Michael Hausa vs The State (1994) 7-8 SCNJ 144 cited in Sofie Feis Caroline Lwangu vs Benson Wafula Ndote [2022] eKLR where it was observed: “If a document is not admitted in evidence but is marked for identification only, then it is not part of the evidence that is properly before the trial judge and the judge cannot use the documents as evidence.” Counsel Kingara countered these submissions by stating that it is well established that in absence of the value of the subject matter being determinable in the pleadings, judgment or settlement, the taxing master has discretion to apply estimated value of the suit property and consider any relevant document presented for such determination. The respondent relied on the cases of Isaac Maina Kamau vs Rahab Wangare Gachiengo Nyang’au & & Another [2017] eKLR, Masore Co. Advocates vs Kensalt Limited [2019] eKLR and Safaris Unlimited (Africa) Ltd vs Muchanga Investments Limited [2017] eKLR which cases he submitted were binding on the High Page 40 of 27

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Court. 38. Regarding the issue of privilege under section 134 of the Advocates Act, the respondent submitted that, the appellant introduced the Page 41 of 27

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matter to mislead the court as the matter was not raised in the memorandum of appeal in contravention of Rule 107 of the Court of Appeal Rules and it was the first time the matter was raised in the submissions. That the issue was neither before the taxing master in taxation nor before the judge in the reference. The respondent also relied on the case of Virginia Shaw & Co. Advocates vs Minar Katherine Holroyd & Another [2022] eKLR to demonstrate that a party cannot validly object to reliance by a taxing officer on a document exchanged between a client and his advocate to prove a retainer and that the issue of privilege does not arise in the circumstances. The court held: “The said correspondence is therefore properly before the court. I see no reason why the same should be expunged as they deal directly with the issue before the court for determination. The issue that the same are privileged does not arise. I would have taken the point seriously if the correspondence were being used by third parties. A client cannot use advocate-client privilege to bar an advocate from adducing correspondence exchanged between the client and the advocate to prove a retainer. The advocate-client privilege was intended to protect the advocate-client confidentiality. It could not be used by the advocate or the client as a shield against their obligations to each other”. 39. Upon a careful analysis of the record of appeal and the Page 42 of 27

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submissions by the parties, we do find that the issue of the email being a privileged communication was not urged either before the Taxing Officer or Page 43 of 27

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before the judge. It will therefore be imprudent for us to dwell on that issue at this level. However, we are satisfied that it was erroneous for the learned judge to issue directions to the taxing officer to use that email as a basis for calculating instructions fees. In its submissions, the respondent urged that the document could not be used as it was never introduced into the matter as evidence and we so agree. What we see is that the advocate introduced that email in a rather unconventional manner, through a ‘List of Documents’ that was filed alongside the Bill of Costs. ‘Lists of Documents’ are documents that are filed together with a plaint under Order 3 Rule 2 of the Civil Procedure Rules. Even then, the documents in such list cannot be considered to be exhibits unless and until they are so admitted in evidence and Mr. Ngatia, SC referred us to authorities on this issue which we fully agree with. There is no provision for filing a ‘List of Documents’ with a bill of costs. If an Advocate wishes to introduce a document, that can only be done through an affidavit, and none was filed by the advocate in this case. Since the email was not introduced into the matter through the proper channel, it cannot be considered as a document that has been admitted as evidence, and in light of that it cannot be used for purposes of taxing the Bill of Costs. Page 44 of 27

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40. It will be recalled that the taxing officer taxed instructions fees at Kshs.3,052,625.00 which she then proceeded to increase by onhalf to make Kshs.4,578,937.50. The pleadings did not disclose the value of the subject matter. The taxing officer was on the right path in considering the directive in the case of Joreth Limited vs Kigano & Associates where the court held that if the value is not determinable from the pleadings, judgment or settlement, “the taxing officer is entitled to use his discretion to assess instruction fees as he considers just, taking into account, amongst other matters, the nature and importance of the cause or matter, the interest of the parties, the general conduct of the proceedings, and direction by the trial judge and all other relevant matters.” The Taxing Officer then went on to state as follows: “I have considered several factors in awarding instruction fee. There was a claim and counter-claim. I have also considered among others, the interest of the parties to the suit and the care and labour employed by counsel in the prosecution of the suit. From the court record, I note that the suit property comprises 19,803 acres situate in Machakos area. This property exchanged hands in the year 1977 for a sum of Kshs.1,000,000.00. I am also alive to the fact that that cannot be the current value of the property. As has been stated above, the suit instruction fee can only be claimed once. I am of the considered opinion that an instruction fee of Kshs.3,000,000/- (sic) for both the Page 45 of 27

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claim and the counter- claim will is reasonable (sic).” Page 46 of 27

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41. The learned Judge faulted the taxing officer on this aspect, for the property was actually not 19,803 acres, but 497 acres, and it was not the property sold in 1977. The learned judge held, correctly so, that this was therefore an erroneous basis for calculating instructions fees. We agree with the learned Judge on this issue save that, as we have held above, it was not correct for the learned Judge to then direct that the email be the basis for taxation. We are persuaded to remit the matter to the taxing officer for a fresh assessment of instruction fees, but with direction that he/she needs to utilize his/her discretion based on the correct facts of the matter, and as we have held, avoiding the email that was not tendered in evidence. We say no more on this so as not to shackle the hand of the taxing officer. 42. The above discourse settles the issue of instruction fees. The second issue is whether the Advocate was entitled to getting up fees. Schedule 6 (2) of the Advocates Remuneration Order 2014, provides: “In any case in which a denial of liability is filed or in which issues for trial are joined by pleadings, a fee for getting up and preparing the case for trial shall be allowed in addition to the instruction fee and shall not be less than one-third of the instruction fee on taxation: Page 47 of 27

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Provided that – (i) ----------- (ii) No fee under this paragraph is chargeable until the case has been confirmed for hearing, but an additional Page 48 of 27

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sum of not more than 15% of the instruction fee allowed on taxation may, if the judge so directs, be allowed against the party seeking the adjournment in respect of each occasion upon which a confirmed hearing is adjourned; In every case which is not heard the taxing officer must be satisfied that the case has been prepared for trial under this paragraph”. 43. The taxing officer in her ruling held that getting up fees was not payable. According to her, the record showed that the hearing had not commenced at the time the advocate vacated the case and that all his appearances related to applications. She did however make a note that there was a hearing dated scheduled for 25 th September 2018, which was after the advocate had already ceased acting. The learned judge thought that the taxing officer was wrong in her finding. He held that getting up fees is earned once a suit is confirmed for hearing and that there were correspondences showing that the case had been fixed for hearing earlier on. 44. We are unable to reconcile the different findings of facts by the taxing officer and the judge for reason that we do not have the record of the ELC case before us. It is therefore impossible for us to confirm which of the two findings is correct. The best we can do under the circumstances is to direct the taxing officer to make an independent assessment of whether getting up fees is deserved Page 49 of 27

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in the Page 50 of 27

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circumstances of the case having in mind the clear directions of Schedule 6 (2) on when such getting up fees is deserved. 45. In the final analysis, the appeal succeeds in that this Court disallows the use of the impugned email in the assessment of the instructions fee. We have pronounced ourselves on the issue of getting up fees and issued the requisite directions to the taxing officer. Accordingly, the assessment of instructions fee and getting up fee are referred to another taxing officer other than Senior Deputy Registrar, Hon. I. N. Barasa. 46. Given the circumstances of this case, it is best that each party bears his/her own costs. 47. Judgment accordingly. Dated and delivered at Nairobi this 25th day of September, 2026. F. TUIYOTT .................................... JUDGE OF APPEAL NDUMA NDERI …..……………….. ………… JUDGE OF APPEAL MUNYAO SILA ………………………………. JUDGE OF APPEAL I certify that this is a true copy of the original. Page 51 of 27

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Signed DEPUTY REGISTRAR. Page 52 of 27

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