J.M Njenga & Co. Advocates LLP v Kimuri Housing Company Ltd & another

5. It is their contention that amount allowed by the Taxing Master is manifestly excessive and that the value of the subject matter was incapable of being ascertained from the pleadings. That therefore the application is incompetent and fatally defective. 6. Parties reiterated their respective positions through their written submissions. The rst issue is whether the application dated 11th June 2024 is incompetent and fatally defective. Analysis and Determination 7. The applicable principles as regards setting aside or varying a taxation of a Bill of Costs are that a Court cannot interfere with the Taxing Ocer’s decision on taxation, unless it is shown that the decision was based on error of principle, or the fee awarded was manifestly excessive as to justify interference. These legal parameters were laid down in First American Bank of Kenya vs Shah and Others [2002] 1 E.A. 64 at 69 by Ringera J. (as he then was) who delivered himself thus; “ 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.” 8. The Clients/Respondents have led Grounds of Opposition contending the fees awarded is excessive since the value of the subject matter could not be deduced from the pleadings. 9. On the other hand, the Applicant/Advocate has referred to paragraphs 13 and 17 of the Amended Plaint and pointed the Court to the fact that the value of the suit property is provided at paragraph 17 as being Kesh 810,000,000 although there was a valuation report which placed the valued at Kesh 470,000,000. 10. Drawing from the said subject value the Applicant has deponed that despite the Valuation report being led on 22/2/2024 and the Taxing Ocer having given directions on the same she chose in her decision to be guided by previously taxed party and party bill of costs where the instruction fees had been taxed at Kesh 5,435,000. It is the Applicant/Advocate’s contention that he was not party to the said taxation which was done ex parte. 11. That the value ascribed to the suit property in the Party and Party Bill of costs was erroneous pegging it at Kesh 470,000,000 yet there were other developments such as the perimeter wall constructed at a cost of Kesh 10,000,000 and other developments placed at Kesh 70,000,000 and so the correct value as per paragraph 13 of the Amended Plaint should have been Kesh 550,000,000 which the Taxing Ocer should have used in the party-to-party bill of costs. 12. The Applicant/Advocate places the value of the suit property at Kesh 810,000,000 although the valuation report places the value at Kesh 470,000,000. My perusal of the pleadings has not noted any document that supports the claim for Kesh 810,000,000 to be the subject value. 13. The question that this Court must answer is whether in determining the instruction fees, the subject matter of the suit subject of the referenced taxed costs was ascertainable and thus whether the Taxing Ocer exercised her discretion correctly. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18682/eng@2025-10-23 2

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14. Since the charging schedule is not in dispute and Judgment was not entered in the Suit, what then is the value of the subject matter? In Peter Muthoka and Another v Ochieng and 3 Others NRB CA Civil Appeal No. 328 of 2017 [2019] eKLR, the Court of Appeal observed that: “ It seems to us quite plain that the basis for determining subject matter value for purposes of instruction fees is wholly dependent on the stage at which the fees are being taxed. Where it happens before Judgment, it is the pleadings that form the basis for determining subject value. Once Judgment has been entered, and for what seems to us to be an obvious reason, recourse will not be had to the pleadings since the Judgment does determine conclusively the value of the subject matter as a claim, no matter how pleaded, gets its true value as adjudged by the Court. Where, however, a suit is settled, then, from a literal and practical reading of the provision, the subject matter value must be sought by reference, in the rst instance, to the terms of the settlement. Just as one would not start with the pleadings in the face of a Judgment, it is indubitable that one cannot start with the pleadings where there is a settlement. It is only where the value of the subject matter is neither discernible nor determinable from the pleadings, the Judgment or the settlement, as the case may be, that the Taxing Ocer is permitted to use his discretion to assess instructions fees in accordance with what he considers just bearing in mind the various elements contained in the provision we are addressing. He does have discretion as to what he considers just but that discretion kicks in only after he has engaged with the proper basis as expressly and mandatorily provided: either the pleadings, the Judgment or the settlement. He has no leeway to disregard the statutorily commanded starting point. And we think, with respect, that the starting point can only be one of the three. It is not open to the Taxing Ocer to choose one or the other or to use them in combination, the provision being expressly disjunctive as opposed to conjunctive. It is also mandatory and not permissive. It seems to us quite plain that the basis for determining subject matter value for purposes of instruction fees is wholly dependent on the stage at which the fees are being taxed. Where it happens before Judgment, it is the pleading that form the basis for determining the subject value.” [Emphasis added] 15. In the instant case, it is undisputed that the suit did not proceed to hearing and it therefore follows that the value of the subject matter herein has to be determined from the pleadings. 16. The Applicant/Advocate referred to the paragraph 13 of the Plaint which embodied the value of the suit property and also listed the developments of the perimeter at a cost Kesh 10,000,000 and the several other buildings build over the years at a cost Kesh 70,000,000 17. This was not contested by the Respondent. This being the case the value of the suit property is deduced from the pleadings to be Kesh 550,000,000 according to the Applicant/Advocate. 18. Can paragraph 13 then be used as the basis for determining the value of the subject matter as submitted and advanced by the Applicant/Advocates? I do not think so. The aforementioned paragraphs are merely descriptive of what is on the suit property. 19. Accordingly, it is my view that this is a case where the subject matter is only discernible and determinable from the pleadings especially the valuation report and thus the Taxing Ocer had an obligation to use the said led report to assess instructions fees and not party to party bill of costs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18682/eng@2025-10-23 3

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20. With regard to Schedule VIA, Paragraph 1 thereof commences with the assessment of instruction fees based on the value of the subject matter, the said paragraph provides in part as follows: “ 1. 21. Instruction fees Subject as hereinafter provided, the fees for instructions shall be as follows—The fees for instructions in suits shall be as follows, unless the Taxing Ocer in his discretion shall increase or (unless otherwise provided) reduce it:(a)To sue in any proceedings (whether commenced by plaint, petition, originating summons or notice of motion) in which no defense or other denial of liability is led, where the value of the subject matter can be determined from the pleading, Judgment or settlement between the parties and –(b)To sue in any proceedings described in paragraph (a) where a defense or other denial of liability is led; or to have an issue determined arising out of inter-pleader or other proceedings before or after suit; or to present or oppose an appeal where the value of the subject matter can be determined from the pleadings, Judgment or settlement between the parties and – …” [Emphasis added] Therefore, it is common ground that the subject matter of the suit in issue should be identied rst, and then the value thereof determined. How is the value of the subject matter to be determined? Paragraph 1 of Schedule VIA is clear on this issue, and in point of fact stipulates that, “ … Where the value of the subject matter can be determined from the pleading, Judgment or settlement of the parties”. This means that the value of the subject matter can be determined from the pleadings or Judgment or settlement of the parties. In that regard, the Court of Appeal in the case of Joreth Ltd. vs. Kigano & Associates [2002] 1 E.A. 92 expressed that“We would at this stage point out that the value of the subject matter of a suit for the purposes of taxation of a Bill of costs ought to be determined from the pleadings, Judgment or settlement (if such be the case) ...” 22. In considering this pertinent issue, I also make reference to D. Njogu and Co. Advocates vs. Kenya National Capital Authority, HC Misc. Applic. No. 21 of 2003 [2005] eKLR, wherein the Advocate therein acted for the Respondent (who was the Plainti) in a suit whose claim was for Kshs. 82,706,408.60, together with interest at 30% per annum from 18th October 2000. On whether the value of the subject matter could be determined from the pleadings, Ochieng, J., as he then was, held that: “ So, whilst I accept that the Advocate may have been instructed to sue for not only the principal sum, but also for interest thereon, at a specic rate, that fact alone cannot mean that the claim would be successful. In other words, the Court could dismiss the whole claim, or grant part of the principal sum. Alternatively, the Court could grant Judgement for the whole principal sum, but without interest, or even with interest at rates other than those claimed. Eectively, therefore the value of the subject matter of the suit would remain indeterminate until the Court passed its verdict on the case.” [Emphasis added 23. The most recent decision of this issue is from the Supreme Court in Kenya Airports Authority v Otieno Ragot & Co. Advocates SCoK Petition E011 of 2023 where the apex Court in setting aside the Court of Appeal’s decision which had enhanced earlier assessed costs of Kshs. 5 Million to Kshs. 196,044,750.50, held that a proper interpretation of the mode of taxation of Advocate fees especially where the suit is https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18682/eng@2025-10-23 4

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determined in a summary manner and where the value of the subject matter has not been veried or ascertained in Court, is that the Taxing Ocer must exercise discretion in assessing the fees payable to the Advocate. 24. Thus, the appropriate clause of the Schedule 6 that ought to have been used by the Taxing Ocer ought to have been 1 (b) which provides inter alia: “ To sue or defend in a suit in which the suit is determined in a summary manner in any manner whatsoever without going to full trial the fee shall be 75% of the fees chargeable under item 1(b)…. Other Matters To sue or defend in any case not provided for above; such sum as may be reasonable but not less than— i. If undefended 45,000 ii. If defended 75,000.” 25. To this end, and based on the principles espoused in the above Supreme Court decision which binds all Courts and Tribunals, I am satised that the Taxing Ocer exercised her discretion wrongly and thus the instruction fees ought to be calculated as using category ii. 26. At same time, the Taxing Master had directed that the client led submissions on the items that they had any objection on and that where no such objection was raised, then the items not objected were to be taxed as drawn. This was in relation to items 4-11, 13-19, 21-24, 26-28, 31, 32, 42, 43, 45, 46, 47, 49, 51, 52, 57, 58, 64-68, 70, 77-82,92,96,98-100,102,106,107 and 110. Despite this direction and the fact that the items were not opposed the Taxing Master still taxed o the items in the category relating to correspondences. To which the Applicant/Advocate submits was erroneous. 27. As regards the taxation of item on getting up fees the same was taxed o due to the Taxing Master’s observation that the matter did not proceed on trial. The Applicant faults the Taxing Master noting that the issue was not whether matter proceeded for hearing but rather whether the matter had been conrmed ready for hearing as per Part A of schedule 6(2). 28. Indeed, contrary to the Taxing Master’s observations, paragraph 2 of Schedule VI(A) of both the Advocates (Remuneration) Order of 2014 only requires denial of liability in a case or joinder of issues for trial by the pleadings, for getting up fees to be payable. It is not disputed that the present application was contested and had not proceeded to trial. However, and this nding notwithstanding, the getting up fee that is awarded is dependent on the instruction fees that are taxed, to the extent that it should not be less than one-third of the instruction fees. This item will also therefore need to be taxed afresh together with that on instruction fees, since this Court has found the taxation of the instruction fees to have been erroneous. Disposal Orders 29. The upshot of the above is that I allow the application to the extent that I set aside the Ruling of the Taxing Master and Certicate of Costs dated 28/05/2024 and refer the Bill back a Taxing Master for retaxation other than the Taxing Master who taxed the Bill on 28/05/2024 for items 1, 2-11, 4-11, 13-19, 21-24, 26-28, 31, 32, 42, 43, 45, 46, 47, 49, 51, 52, 57, 58, 64-68, 70, 77-82,92,96,98-100,102,106,107, 110 and 117. 30. The cost of this application is awarded to the Applicant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18682/eng@2025-10-23 5

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31. Orders accordingly. DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 23RD DAY OF OCTOBER, 2025. .......................... MOGENI J JUDGE In the presence of:Ms. Wachanga for the Applicant 1st and 2nd Respondents – Absent Mr. Melita – Court Assistant ........................... MOGENI J JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18682/eng@2025-10-23 6

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