Webale B & Associates Advocates v Isanda & another

2. The application is premised on the grounds appearing on its face together with the supporting adavit of Joshua Abuya Isanda sworn on even date. The Applicant’s Case 3. It is the Applicants position that they were never served with the bill of costs in this matter. The deponent asserts that they were informed by someone from the Respondent’s rm that the bill had been taxed and that judgment had been entered against them. 4. He maintained that the bill of costs is excessive and exaggerated, and that it ought to be struck. He further argued that the advocate represented them for a period of 8 years and that they had paid his legal fees. He maintained that for the period of 8 years, the advocate never raised a fee note demanding legal fees, and that they assumed he was comfortable with what they paid him. 5. He further asserted that the bill of costs is based on an erroneous value for the suit property, which is not supported by a valuation report. He argued that the value of the suit property is Kshs 3,000,000/ = and that any taxation should be based on that value. 6. The deponent is apprehensive that the Respondent will execute if the orders sought are not granted. The Respondent’s Case 7. The Respondent led a replying adavit dated 25th February 2025 in opposition to the application. 8. He deposed that the Applicants were served with the application as shown by the adavit of service dated 26th August 2024, which they have not challenged. He maintained that the applicants were aware of the bill of costs, as on 3rd September 2024, his rm was served with a Notice of Appointment of Advocates by the rm of Morara Onsongo & Company Advocates, which was later emailed to inquire about the status of the taxation. That, despite being aware of the taxation, the rm of Morara Onsongo & Co Advocates failed to appear. He denied the allegations that the suit property was worth 3,000,000/ = or that they had paid any fees. The application was canvassed by way of written submissions. The Respondents/applicants Submissions 9. The Applicants led their submissions dated 26 November 2025. To support his submissions, Counsel reiterated the contents of the supporting adavit and relied on the cases of Moronge & Co Advocates v Kenya Airports Authority (2014) eKLR and D Njogu & Co Advocate v National Bank of Kenya Ltd (2009) eKLR. The Advocate/respondent’s Submissions 10. The Advocate/Respondent led his submissions dated 11th September 2025. 11. On his behalf, Counsel submitted that the application is incompetent because it challenges the decision of the taxing master and has not been initiated through a reference. It was submitted that the adavit of service attached to the replying adavit conrms that the Applicants were served and were therefore aware of the proceedings before the taxing ocer. Analysis And Determination 12. Having considered the application, the respective adavits, and the rival submissions, the issue for determination is whether the application is properly before this court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18425/eng@2025-12-11 2

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13. The Applicants seek to set aside the ruling of the taxing ocer delivered on 20th November 2024 on the grounds that they were not served and that the amount taxed is manifestly excessive. 14. The procedure for challenging a Taxing Ocer’s decision is set out in Rule 11 of the Advocates (Remuneration) Order. A Judge’s jurisdiction to interfere with taxation is appellate, not original. In Kipkorir, Titoo & Kiara Advocates vs Deposit Protection Fund Board (2005) 1 KLR 528, the Court of Appeal held that: “ On a reference to a judge from the taxation by the Taxing Ocer, the Judge will not normally interfere with the exercise of discretion by the taxing ocer unless the taxing ocer erred in principle in assessing the costs- an example of an error of principle is where the costs allowed are so manifestly excessive as to justify an inference that the taxing ocer acted on erroneous principles.” 15. It is not in dispute that the Applicants did not invoke Rule 11 of the Advocates (Remuneration) Order but instead moved the court through an ordinary application, inviting the court to set aside the Taxing Ocer’s decision directly. The Applicants grievances that the award was excessive can only be interrogated within the connes of a reference. 16. Based on the foregoing, I nd that the application dated 28th November 2024 is incompetent and is hereby dismissed with costs. RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS THIS 11TH DAY OF DECEMBER, 2025. …………………….. HON. T. MURIGI JUDGE In The Presence Of: Webale for the Advocate Getuma holding brief for Morara for the Applicants. Ahmed – Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18425/eng@2025-12-11 3

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