Michael M. Kibe & Another (Practising as Wanja & Kibe Advocates) v Aryan Limited

1) That this Honourable Court be pleased to set aside the decision of the Learned Taxing Master, Honourable Christopher Yalwala, delivered on 16th July 2025, in relation to Items 1, 2, 162, 163, 164 to 172, 173, 174 to 177, 178, 179, 180, 189, 197, 198, 199 and 204 of the Advocate/Client Bill of Costs dated 2nd September 2024; 2) That this Honourable Court be pleased to re-tax the aforementioned items of the Advocate/Client Bill of Costs dated 2nd September 2024 or, in the alternative, refer the Bill of Costs for fresh taxation before a different Taxing Master with specific directions; and 3) THAT the costs of this Reference be awarded to the Advocates/Applicants. 2. The application which is supported by an Affidavit sworn by Eunice W. Njeru Advocate is premised on the grounds inter alia, that: i) The Learned Taxing Master erred in principle and in law by; a) Taxing off the instruction fees as claimed and allowing a manifestly low sum based on RULING Page 2 of 16 MSA. ELCMISC.APP. E072 OF 2024

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the incorrect premise of a charge registered against the suit property, thereby fettering his discretion. b) Ignoring substantial evidence on record, specifically the documents annexed to the Affidavit in Support of the Bill of Costs dated 25th February 2025, which clearly established the true market value of the subject matter at Kshs.150,000,000/=; c) Wrongfully and without reason disallowing the instruction fees for defending the Counterclaim filed by the 1st Defendant, despite the Advocate having filed a Reply to Defence and Defence to Counterclaim dated 11th July 2017; and d) Departing from the established principles in Joreth Ltd –vs- Kigano & Associates [2002] 1 EA 92, by failing to assess the fees based on the value of the subject matter, complexity, labour, and responsibility involved, resulting in an award not commensurate with the work done. RULING Page 3 of 16 MSA. ELCMISC.APP. E072 OF 2024

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ii) The Learned Taxing Master erred in law by disallowing getting-up fees on the erroneous basis that the main suit had not commenced hearing, yet: a) Getting-up fees under Schedule 6, Part II of the Advocates (Remuneration) Order are earned once a matter is confirmed for trial, for which extensive preparation is undertaken; b) The suit was confirmed for hearing on 16th May 2022, and subsequently set down for trial on numerous dates as evidenced by the court record and the taxed items 173, 178, and 180 in the Bill of Costs dated 2 nd September, 2024 and the Ruling of the Tax Master of the said items; and c) The fee is for preparation for trial, not the conduct of it, as held in Mayers & Another v Hamilton & Others [1975] EA 13, and the work was fully completed. iii) The Learned Taxing Master erred in principle by taxing off necessary client meetings and consultations, RULING which Page 4 of 16 were essential for MSA. ELCMISC.APP. E072 OF 2024

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preparing witness statements, trial bundles, and trial strategy. iv) The Learned Taxing Master erred by taxing items 164 to 172, 174 to 177 and 179 on attendances at a manifestly low sum of Kshs. 3,000/= without justification, despite the attendances being before a Judge, involving multiple represented parties and exceeding one hour. v) The Learned Taxing Master erred in law by applying the scale for an undefended suit (Kshs. 7,100/=) in items 173, 178 and 180 to a fully defended cause which included a Counterclaim thereby misdirecting himself on the applicable scale under Schedule 6 of the Advocates (Remuneration) Order; vi) The Learned Taxing Master erred in principle by disallowing duly vouched disbursements under items 197, 198 and 199, which were proven through receipts and were necessarily incurred in the prosecution of the client's case; and RULING Page 5 of 16 MSA. ELCMISC.APP. E072 OF 2024

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vii) The Learned Taxing Master made consequential errors in law and computation regarding the 50% increase and the applicable 16% VAT and interest under items 189 and 204 of the Bill of Costs. 3. Aryan Limited (the Respondent) is opposed to the application. In a Replying Affidavit sworn on 10 th November 2025 by its director Mahesh K. S. Shah, the Respondent avers that for purposes of taxation the value of the subject matter ought to be determined from the pleadings, judgment or settlement and where such value is not ascertainable, the Taxing Officer is entitled to exercise his discretion. 4. The Respondent avers further that a copy of the charge annexed to the Applicant’s Supporting Affidavit is new evidence which neither featured in the primary suit nor formed part of the pleadings and this Court cannot therefore rely on the same to establish the instructions fees. The Respondent asserts that the Taxing Officer exercised his discretion fairly and within the proper parameters of the law. RULING Page 6 of 16 MSA. ELCMISC.APP. E072 OF 2024

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5. In regard to the Getting-up fees the Respondent avers that the Applicant has not adduced any evidence of preparation in readiness for the trial and that the material before the Taxing Master clearly shows that the matter has never taken off for hearing. 6. The Respondent further asserts that the findings of the Taxing Master in respect of the alleged meetings and consultations, attendances for pre-trial and hearing as well as on alleged disbursements were equally fair and consistent with established practice and urges this Court to uphold the same. 7. I have carefully perused and considered both the Reference as well as the response thereto. I have similarly perused and considered the submissions and authorities placed before the Court by the Learned Advocates representing the parties. 8. By this Reference, the Advocate/Applicant takes issue with the assessment of several items in the Bill of Costs dated 2 nd RULING Page 7 of 16 MSA. ELCMISC.APP. E072 OF 2024

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September 2024 and urges the Court to set the same aside, re-tax the Bill or, in the alternative refer the Bill of Costs for fresh taxation before a different Taxing Master. In particular, the Applicant is dissatisfied with the Honourable Deputy Registrar’s assessment of Item Numbers 1, 2, 162, 163, 164 to 172, 173, 174 to 177, 178, 179, 180, 189, 197, 198, 199 and 204 in the said Bill of Costs. 9. As Justice J.B. Ojwang (as he then was) stated in Republic – vs- Minister for Agriculture & 2 Others Ex-Parte Muchiri W’Njuguna & 6 Others (2006) eKLR: “The taxation of costs is not a mathematical exercise, it is entirely a matter of opinion based on experience. A Court will not, therefore interfere with the award of a taxing officer, particularly where he is an officer of great experience, merely because it thinks the award is somewhat too high or too low; it will only interfere if it thinks the award is so high or so low as to amount to injustice to one party or the other ....... The Court cannot interfere with the taxing officer’s decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was manifestly excessive as to justify an inference RULING Page 8 of 16 MSA. ELCMISC.APP. E072 OF 2024

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that it was based on an error of Principle. Of course, it would be an error of principles 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 case 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 the actual case before him. If the Court considers that the decision of the taxing officer discloses errors of principle, the normal practice is to remit it back to the taxing officer for re-assessment unless the judge is satisfied that the error cannot materially have affected the assessment....” 10. In the matter before me, it was the Applicant’s position that the Taxing Master had taxed off the instructions fees at a manifestly low sum that was based on an incorrect value of the subject property which relied on a charge of Kshs. 40,000,000/= registered against the suit property. It was the Applicant’s case that based on the documents placed RULING Page 9 of 16 MSA. ELCMISC.APP. E072 OF 2024

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before the Court, the conservative estimated value of the suit property was Kshs. 150,000,000/=. 11. Having considered the Advocate/Applicant’s submissions on the issue of the instruction fees, the Learned Taxing Master in his Ruling dated 16th July 2025 concluded as follows: “1. Item 1 on Instructions fees This item provides for instruction fees. Where the value of the subject matter can be determined from the pleadings, judgment or settlement, the instructions fees is calculated in accordance with the provisions of Paragraph 1 in accordance with sub-paragraphs (a) and (b) thereunder as applicable. Learned counsel for the Advocate/Applicant indicated in the said bill of costs that the land the subject matter as shown in the plaint was valued at Kshs. 150,000,000.00 in 2016 and it was charged to Fidelity Commercial Bank to secure a loan of Kshs. 40,000,000.00 in 2011. That, the instruction fee is thus based on the said value RULING of the subject Page 10 of 16 matter of Kshs. MSA. ELCMISC.APP. E072 OF 2024

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150,000,000.00; hence the charged instructions fee of Kshs. 4,900,000.00. In the pleadings proceedings, herein particularly as the well plaint, as the however only indicates that the land the subject matter in Mombasa ELC Case No. 83 of 2016 was purchased in the year 2009 for Kshs. 19,000,000/= and was later charged to a bank for Kshs. 40,000,000.00 in September 2011. There is nowhere stated that the same was valued at Kshs. 150,000,000.00 in 2016. I, thus, find that the value that can be determined from the pleadings, which is the value of the subject matter herein and which shall be used for the purposes of taxation of this bill of costs herein is Kshs. 40,000,000.00.” 12. Try as I may, I was unable, to find any fault with the Learned Taxing Master’s conclusion on this aspect. From the material placed before the Court, it was apparent that the Applicant had come up with the figure of Kshs. 150,000,000.00 from the Applicant’s own interpretation of Paragraph 26 of the Plaint filed in the subject suit. At the said paragraph, the Respondent had pleaded that after it purchased the suit property, “it had developed the same into RULING Page 11 of 16 MSA. ELCMISC.APP. E072 OF 2024

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a commercial office building which has raised its value tenfold.” Arising from that statement, the Applicant had contended that the value of the suit property was now 10 times the price at which it was bought and that it was now worth Kshs. 190,000,000.00 13. I was however unable to import such meaning to the Respondent’s pleadings. There was nowhere in the Plaint where the suit property’s value was indicated as Kshs. 150,000,000.00 as at the year 2016 and there was no basis upon which the Learned Taxing Master could base the instruction fee on that figure. 14. The applicable legal principles on determining the value of the subject matter for purposes of assessing instruction fees was clearly set out by the Court of Appeal in Peter Muthoka & Another –vs- Ochieng & 3 Others (2019) eKLR, where the Court held as follows: “It seems to us quite plain that the basis for determining subject matter value for purposes of RULING Page 12 of 16 MSA. ELCMISC.APP. E072 OF 2024

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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 heard 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.” 15. Arising from the foregoing, I was not persuaded that the Taxing Master had based the instruction fees on an incorrect value of the property and/or that the amount taxed and allowed of Kshs. 800,000/- was too low as to amount to an error in principle. 16. In regard to the Getting-up fees, the Learned Taxing Master observed at page 2 of his Ruling as follows: “Getting up fees is charged under paragraph 2 of the said Schedule which provides that the same shall be not less than a third of the instruction fees. However, under proviso (i) and (ii) thereof, no fee RULING Page 13 of 16 MSA. ELCMISC.APP. E072 OF 2024

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under the said paragraph is chargeable until the case has been confirmed and in the case, like herein, which has not been heard, the taxing officer must be satisfied that the case has been prepared for trial under this paragraph. In this case, I concur with Learned Counsel for the Respondent that there is no evidence that this matter was confirmed for hearing and the Advocate/ Applicant prepared for trial. Indeed, the trial is still pending; having never commenced. As such, I find that getting up fees is not awardable.” 17. The Applicant has faulted the above position asserting that the Getting-Up fees are earned once the matter is confirmed for trial. In this respect, the Applicant contended that the suit the subject matter of the Reference was confirmed for hearing on 16th May 2022 and that the same was subsequently set down for hearing on a number of occasions even though the hearing did not commence. 18. As it were, getting up fee is paid or awarded during the taxation of a bill of costs provided the matter reached a point where a defence or denial of liability is filed and the RULING Page 14 of 16 MSA. ELCMISC.APP. E072 OF 2024

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case is confirmed or prepared for hearing. The basis for this award is that the Advocate did the work to prepare for trial. 19. In the matter herein, I have not been shown anything that was placed before the Taxing Master to demonstrate any preparations made in readiness for trial. From the material placed before the Court, there was nothing to show that pretrial directions had been taken in the subject suit and/or that any witness statements and list of documents had been exchanged between the parties. Getting-up fees are paid at the discretion of the Taxing Master. From the material placed before the Court, I was unable to find any basis from which I could conclude that he had wrongfully exercised the said discretion in disallowing the getting-up fees. 20. Having arrived at the above conclusion and having looked at the other items raised by the Applicant such as attendances and disbursements, I was not persuaded that any misassessment thereof could amount to an error of principal that would warrant any interference with the findings of the Learned Tax Master. RULING Page 15 of 16 MSA. ELCMISC.APP. E072 OF 2024

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21. In the premises I find and hold that there was no merit in the Chamber Summons dated 29th July 2025, I dismiss the same. 22. Each party shall bear their own costs. Ruling dated, signed and delivered in open court and virtually at Mombasa this 24th day of September, 2026. ………………………….. J.O. OLOLA JUDGE In the presence of: a) Ms. Firdaus Court Assistant. b) Mr. Gode holding brief for Ms. Wanja Advocate for the Applicant c) Mr. Anangwe Advocate for the Respondent RULING Page 16 of 16 MSA. ELCMISC.APP. E072 OF 2024

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