Kumar 2 others

The Applicant’s Case 3. The Applicant is aggrieved by the ruling of the Taxing Ocer on the grounds that the award for instruction fees is manifestly excessive and was made without any justication. The deponent asserted that the Taxing Ocer did not consider the fee scale set out in the Advocates Remuneration Order 2009, which was applicable at the time. He maintained that the Applicant had already paid the fees in 2011 based on an oral agreement made that same year. The Respondent’s Case 4. The Respondent led a replying adavit dated 12th March 2025 in opposition to the application. The deponent stated that prior to the ruling on the advocate-client bill of costs, the party and party costs had been taxed at Kshs 970,919/=. He further averred that a certicate of costs had been issued and no reference had been led to challenge that taxation. Based on this assessment, the taxing ocer increased the party and party costs by 50% to determine the instruction fees payable. He maintained that the instruction fees were justied because they were assessed in accordance with the Advocates Remuneration Order. He denied there was an oral agreement between the parties. 5. The Respondent led an application dated 3rd March 2025 seeking the following orders:_ 6. a) Spent b) Judgment be entered in the sum of Kshs 1,559,399 against the Respondent in accordance with the Certicate of Cost dated 21st February 2025, together with interest from the date of this ruling. c) The costs of the application be provided for. The application is premised on the grounds appearing on its face together with the supporting adavit of Anthony Burugu Advocate, sworn on even date. The Applicant’s Case 7. The Applicant is seeking to enforce the ruling delivered on 6th February 2025, in which the Taxing Ocer taxed the bill of costs at Kshs 1,559,399.06/=. He urged the court to allow the application as prayed. The Respondent’s Case 8. The Respondent led a replying adavit of Samuel Mbugua in opposition to the application. He argued that the Respondents had led a reference challenging the Taxing Ocer's ruling. 9. The Reference was canvassed by way of written submissions. The Objectors/applicant’s Submissions 10. The Applicant led its submissions dated 30th April 2025. On behalf of the Applicant, Counsel outlined the following issues for the court’s determination:a. Whether the total award of Kshs 1,559 399.06/= occasioned an error of principle. b. Whether the award is punitive in nature and not compensatory https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18337/eng@2025-12-05 2

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11. On the rst issue, Counsel submitted that the Taxing Ocer erred in principle by applying the wrong Remuneration Order. Counsel contended that the applicable Remuneration order should have been the Advocates' Remuneration Order 2009, which was in force at the time this suit was led. 12. Regarding the second issue, Counsel submitted that the award for instruction fees is manifestly excessive and amounts to unjust enrichment. It was submitted that the case was straightforward; therefore, the award is both punitive and compensatory. 13. In conclusion, Counsel urged the court to allow the application with costs to the Applicant. The Respondent’s Submissions 14. The Respondent led its submissions dated 21st May 2025. On behalf of the Respondent, Counsel outlined the following issues for the court’s determination:a) Whether the Learned Taxing Ocer erred in awarding the sum of Kshs 1,559,399.06? b) Whether the award is punitive in nature? c) Who should bear the costs of the applications? 15. Regarding the rst issue, Counsel relied on the contents of the replying adavit to support his submissions. It was submitted that the assessment of the instruction fees was justied because it was based on party and party costs and in accordance with the Advocates' Remuneration Order. 16. It was further submitted that the Applicant had not demonstrated any grounds to justify the setting aside of the ruling. Counsel urged the court to dismiss the application and allow the Respondent’s application with costs. Analysis And Determination 17. Having considered the Reference, the grounds of opposition and the rival submissions, the issue that arises for determination is whether the decision of the Taxing Ocer should be set aside. 18. The Applicant challenged the decision of the Taxing Ocer on the basis that an incorrect Remuneration Order was applied in the taxation of the Advocate-client bill of costs. 19. The circumstances under which the Court can interfere with a Taxing Ocer’s decision were outlined in the case of First American Bank of Kenya Ltd v Gulab P. Shah & 2 others [2002] KEHC 1277 (KLR) as follows:“ First, I nd that on the authorities, this court cannot interfere with the taxing ocer’s decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was so manifestly excessive as to justify an inference that it was based on an error of principle. (See STEEL & PETROLEUM (E.A) LTD VS. UGANDA SUGAR FACTORY (Supra). Of course. It would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors. And according to the Advocates Remuneration Order itself, some of the relevant factors to take into account include the nature and importance of the cause or matter, the amount or value of the subject matter involved, the interest of the parties, the general conduct of the proceedings, and any direction by the trial Judge. Needless to state, not all the above factors may exist in any given case, and it is therefore open to the Taxing Ocer to consider only such factors as may exist https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18337/eng@2025-12-05 3

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in the actual case before him. If the court considers that the decision of the Taxing Ocer discloses errors of principle, the normal practice is to remit it back to the Taxing Ocer for re-assessment unless the Judge is satised that the error cannot materially have aected the assessment.” 20. It is well-established law that the applicable remuneration order for an advocate-client bill is the one in eect at the time the instructions are given, not when taxation occurs. In the case of Joreth Ltd v Kigano & Associates, the court held that instruction fees accrue once instructions are received. 21. It is not in dispute that the suit from which the bill of costs arose was led in 2011. As of 2011, the applicable remuneration order was the Advocates' Remuneration Order 2009. The taxing ocer applied the 2014 Remuneration Order. This constitutes an error of principle that allows this court to interfere with the taxation. The Respondent’s argument that the Taxing Ocer exercised discretion properly cannot cure an error of principle. 22. Having found that the Taxing Ocer erred in principle in applying the wrong Remuneration Order, the impugned ruling on taxation cannot stand. Consequently, the application that seeks to enforce the ruling is premature, and I will not delve into its merits. 23. In the end, I nd that the application is merited and the same is allowed in the following termsa. The ruling dated 6th February 2025 is hereby set aside. b) The bill of costs shall be remitted for re-taxation before a dierent Taxing Ocer. c) Costs to abide with the outcome of the taxation. RULING DATED, SIGNED & DELIVERED VIA MICROSOFT TEAMS THIS 5TH DAY OF DECEMBER 2025 …………………… T. MURIGI JUDGE IN THE PRESENCE OF: Mbatha holding brief for Burugu for the Respondent. Ahmed – Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18337/eng@2025-12-05 4

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