Norman Asega t/a N.K. & Co. Advocates v Ngaruiya & another

Ksh 2,915,623. The taxing ocer’s decision has not been challenged, and fourteen days have lapsed. As a result, a certicate of taxation was issued on 29 October 2025, which has not been set aside or altered by the court. The parties presented copies of the ruling and certicate of taxation to the court. 4. In the second application, which is moved under Rule 11(1) and (2) of the Advocates (Remuneration) Order, 1962 (as subsequently amended), Schedule 6 of the Advocates (Remuneration) Order 2014 and Sections 1A, 1B, and 3A of the Civil Procedure Act, and all other enabling provisions of the law, the clients pray for the following orders: a. That the decision of the taxing ocer delivered on 9 October 2025 and reviewed on 29 October 2025 on the taxation of the BOC dated 5 May 2025 and any consequential orders thereon be set aside and/or vacated. b. That the Advocate-Client BOC dated 5 May 2025 be taxed afresh by a dierent constituted taxing ocer in strict compliance with the Advocates Remuneration Order and the applicable principles of taxation, fairness and equity as guided by this court. c. That in the alternative, this honourable court be pleased to assess/tax the costs lawfully payable to the applicant vide the said Bill of costs dated 5th May 2025 on Item 1 being the instruction fees, Item 3 on instructions for counterclaim and getting up fees, and the service fees payable thereon. d. That this honourable court be pleased to order that the costs of this application, as well as the costs in the contested bill of costs, be borne by the advocate. e. That this Honourable Court be pleased to make such order or orders as it may deem just and appropriate in the circumstances. 5. The application is premised on the supporting adavit of Mungai Ngaruiya, deposed on 3 March 2025, and on the grounds set out on the face of the application. Several assertions are made, succinctly, in making his grievances on items 1 and 3 on instruction fees on the main suit and counterclaim and item 5 on getting up fees; he asserts that the taxing ocer misapplied the law and failed to use the correct formula under Schedule 6 of the Advocates (Remuneration) Order 2014 when assessing instruction fees. He asserts that awarding Kshs. 950,000 each for the suit and counterclaim lacks a legal and factual basis and is excessive, as the matter has not gone to a full hearing. The ocer is also said to have failed to justify the valuation, improperly awarded a second instruction fee on the counterclaim for the same subject matter, and introduced a revised gure without explanation or a chance for the clients to be heard, thereby breaching natural justice principles. 6. When served, the advocate vehemently opposed the summons through the replying adavit sworn by counsel Norman Asega on 10 May 2026, where, in brief, he states that the clients failed to show any legal error by the taxing ocer, only expressing dissatisfaction with the amount taxed, which is not grounds for altering the costs. The taxing ocer gave a detailed and reasoned decision, correctly applying the Advocates Remuneration Order, including the proper allowance of getting-up fees since the case was certied ready for hearing. Instruction fees for defending and prosecuting a counterclaim are separate, as a counterclaim is an independent suit. A subsequent review by the taxing ocer merely corrected an arithmetic error, which did not aect the substance of the ruling or require a new hearing. 7. When the matter came before the court for directions on 18 May 2026, each party was given 21 days to le composite submissions on the two applications. At the time of writing this ruling, none of them has complied with the directions. Thus, if any of them le at all, they will be considered led out of time without further reference to the court. Consequently, upon considering the applications, grounds, adavits and annexures, the issues for determination are, inter alia, (a) whether this court https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5945/eng@2026-09-29 2

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should interfere with the taxing ocer’s decision, and (b) if (a) is in the negative, whether judgment should be entered against the clients. We proceed sequentially. Whether this court should interfere with the taxing ocer’s decision 8. The pertinent legal provision granting this court the authority to hear a reference against the decision of a taxing ocer and establishing the procedure for approaching this court as a superior court is located in Order 11 of the Advocates (Remuneration) Order (“Order”), which states: “ (1) Should any party object to the decision of the taxing ocer, he may within fourteen days after the decision give notice in writing to the taxing ocer of the items of taxation to which he objects. (2) The taxing ocer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection. (3) 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. (4) The High Court shall have power in its discretion by order to enlarge the time xed by subparagraph (1) or subparagraph (2) far the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.” 9. Regarding prevailing jurisprudence, when handling a reference, the persuasive decision of First American Bank of Kenya Ltd v Gulab P. Shah & 2 others [2002] KEHC 1277 (KLR), which this court adopts, states that a court should refrain from intervening in decisions made by the taxing ocer concerning taxation unless it can be demonstrated that the decision was based on an error of principle or that the fee awarded was so obviously excessive as to indicate a mistake of principle. 10. Furthermore, it is well-established law that a superior should not overturn a taxation decision made by the taxing ocer simply because it would have awarded a higher or lower amount. Some of the guidelines on assessment of costs have been summarised in the decision of Kenya Airports Authority v Otieno Ragot and Company Advocates [2024] KESC 44 (KLR), where the Supreme Court of Kenya elaborated thus in paragraphs 3- 15 of its decision: “ a. Schedule 6A of the ARO provided for Party-Party costs, that was, the manner in which costs awarded to a successful party as against another party should be assessed/computed/taxed. The essence of such costs was to ensure a successful litigant/party received a fair reimbursement/recompense for the costs/expenses he/she has had to incur on account of a suit. b. The subject matter of the suit in issue should be identied rst, and then the value thereof determined. Paragraph 1 of Schedule 6A of the ARO stipulated that the value of the subject matter could be determined from the pleading, judgment or settlement of the parties. That meant that the value of the subject https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5945/eng@2026-09-29 3

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matter could be determined from the pleadings or judgment or settlement of the parties. The basis for determining the subject matter value for purposes of instruction fees was wholly dependent on the stage at which the fees were being taxed. Where it happened before judgment, it was the pleadings that formed the basis for determining subject value. Once judgment had been entered, and for what seemed to us to be an obvious reason, recourse would not be had to the pleadings since the judgment determined 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 was 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 was indubitable that one could not start with the pleadings where there was a settlement. c. Whilst the determination of the value of subject matter from a judgment and settlement of the parties was quite straight forward, the determination from pleadings was not. The determination of the value of the subject matter, could be dicult, for instance, where the pleadings/suit was struck out at a preliminary stage, such as in the instant case, and the value could only be determined/ascertained upon the conclusion of a trial. d. The original plaintis did not provide any particulars or the value of the parcels that were allegedly compulsorily acquired by the appellant. That information was necessary as a guide to the Taxing Ocer in the assessment of reasonable costs. The original plaintis simply pleaded or claimed a sum of Kshs.13,932,000,000 as special damages and indicated that the particulars thereto would be availed during the hearing. Therefore, the value of the subject matter could only be determined upon the conclusion of the trial which never happened. e. A claim in a suit which was struck out at the preliminary stage did not ipso facto render that claim or amount pleaded therein without more the value of the subject matter. The position still remained that the amount therein had not been ascertained or determined, and as such, it could not be applied as the value of a subject matter in a disputed taxation. The application of such a claim or amount as the value of the subject matter would go against the rationale that the fees/costs paid to an advocate and a successful party should be reasonable. Consequently, even where the amount claimed in a pleading which was struck out by a court, as in the instant appeal, the said amount would not act as the value of the subject matter when it came to taxation of instruction fees. f. Where the value of the subject matter could be determined, the Taxing Ocer was required to set out the basic fees prescribed under Schedule 6 Part A. Similarly, where the Taxing Ocer assessed instruction fees based on the nature of a matter as stipulated in Paragraph 1, for instance like, bankruptcy proceedings or matrimonial causes she/he was required to set out the basic fees prescribed thereunder. It was after setting out the basic fees that the Taxing Ocer could exercise his/her discretion to increase or (unless otherwise provided, like in matrimonial causes) reduce the said basic fees. In exercising https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5945/eng@2026-09-29 4

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such unfettered discretion, the Taxing Ocer was required to do so judiciously and not whimsically. f. In the event that value of the subject matter of a suit could not be determined from either the pleadings, judgment or settlement by the parties, and the nature of the said suit was not provided for in Paragraph 1 of Schedule 6 A, proviso thereunder empowered a Taxing Ofcer to exercise his/her discretion in assessing instruction fees for such a suit. g. Schedule 6 Part B relates to Advocate-Client costs, it provided for the manner in which advocates costs/fees should be assessed/taxed. Once instruction fees in Party- Party costs in a particular suit were assessed/taxed under Part A, and a certicate of costs to that eect was issued, the assessment of instruction fees in Advocate-Client costs in the same suit simply required the application of the formula stipulated under Part B, that was, the fees, the instruction fees, taxed or ascertained under Part A increased by one-half. Besides, the impugned majority judgment found that where Party-Party costs were taxed under Part A, the Taxing Ocer was devoid of any discretionary power when it came to the assessment of instruction fees in Advocate-Client Bill of Costs. h. The Taxing Ocer was required to take into account Part A. That did not mean that such a Taxing Ocer was simply to increase the instruction fees determined/ascertained in Part A by one-half or 50%. That was because rule 16 of the Advocates Remuneration Order provided that notwithstanding anything contained in the Order, on every taxation the Taxing Ocer may allow all such costs, charges and expenses as authorized in the Order as shall appear to him to have been necessary or proper for the attainment of justice or for defending the rights of any party. Rule 16 should be read together with section 2 of the Advocates Act, which interpreted the word costs as including fees, charges, disbursements, expenses and remuneration. h. Judicial discretion was the exercise of judgment by a judge or court based on what was fair under the circumstances and guided by the rules and principles of law; a court’s power to act or not act when a litigant was not entitled to demand the act as a matter of right. i. The proper interpretation of Schedule 6B was that in assessing fees thereunder, including instruction fees, a Taxing Ocer was required to exercise his/her discretion guided by the prescribed scale of fees in Part A. That did not mean, as the impugned majority judgment found, that a Taxing Ocer was simply to apply the mathematical formula to the instruction fees ascertained in the taxed Party-Party costs. Failure to evaluate a disputed item under taxation and determine it judiciously was contrary to the clear provisions of rule 16 of the Advocates Remuneration Order. A Taxing Ocer being a judicial ocer exercising a judicial mandate could not be said to be performing such mandate mechanically or merely as a formality. j. An Advocate would be entitled to payment of a reasonable fee which is commensurate with the work done. What was a reasonable fee in the circumstance could only be adjudicated by a taxing master by application of his discretion. If the instruction fee in a certicate of Party-Party costs was https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5945/eng@2026-09-29 5

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disputed when it came to the assessment of the same in Advocate-Client costs under Schedule 6B, the Taxing Ocer should subject the disputed items to evaluation and judicial determination according to the circumstances of each case. The instruction fees in the Party-Party certicate of costs once disputed must be ascertained and the certicate could not be applied hook, line and sinker in the assessment of instruction fees under Part B.” See also Joreth Limited v Kigano & Associates [2002] KECA 153 (KLR) and Kamunyori & Company Advocates v Development Bank Of Kenya Limited [2015] KECA 595 (KLR) 11. Accordingly, having stated the principles of law, this court will now consider the grievances posited by the client against the taxing ocer allegedly on her misapprehension of the provisions of the law as set out in the Order and awarded costs that were manifestly high, wrong, illegal and excessive on item 1 (instruction fees to le suit), item 3 (instructions to defend the counterclaim) and item 5 (fees for getting up or preparing for trial). Evidently, from the face of the application and supporting adavit, these are the items the clients are aggrieved against. 12. The client also complained about correction of an arithmetical error by the taxing ocer on 29 October 2026 under the slip rule. It is necessary to state the relevant law and prevailing jurisprudence on this issue. Respecting this, the principal statutory provision is found in our Sections 99 and 100 of the Civil Procedure Act, which provide: Section 99 “ Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties.” Section 100 “ The court may at any time, and on such terms as to costs or otherwise as it may think t, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceeding.” 13. An examination of this proviso shows that the slip rule applies for correcting clerical or arithmetical errors, or mistakes arising from “an accidental slip or omission.” Such corrections aim to reect the manifest intention of the court at the time it issued the judgment, ruling, or order, and to amend errors it has made. Therefore, the court must be convinced that it is genuinely implementing its original intention at the time the impugned ruling was issued and that any errors have been rectied. Several judicial pronouncements have outlined the guiding principles of law on this matter, but of most signicance is the Kenya Supreme Court decision of Outa v Okello & 3 others [2017] KESC 25 (KLR), which binds this court, and in it, it was stated: “ By its nature, the Slip Rule permits a Court of law to correct errors that are apparent on the face of the Judgment, Ruling, or Order of the Court. Such errors must be so obvious that their correction cannot generate any controversy, regarding the Judgment or decision of the Court. By the same token, such errors must be of such nature that their correction would not change the substance of the Judgment or alter the clear intention of the Court. In other words, the Slip Rule does not confer upon a Court, any jurisdiction or powers to sit https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5945/eng@2026-09-29 6

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on appeal over its own Judgment, or, to extensively review such Judgment as to substantially alter it. Indeed, as our comparative analysis of the approaches by other superior Courts demonstrates, this is the true import of the Slip Rule.” See also Leonard Mambo Kuria v Ann Wanjiru Mambo [2017] KECA 782 (KLR), and Five Star Agencies Limited v National Land Commission [2022] KEELC 14745 (KLR). 14. Having considered that the review and/or amendment by the taxing ocer was to correct an arithmetical error under the slip rule, so as to give eect to the true amount on the taxed sums, which she could even do suo moto, this court nds that the taxing ocer did not err in law or fact on this. 15. In the present matter, the BOC submitted to the taxing ocer pertains to an advocate-client bill of costs dated 5 May 2025. Under the prevailing circumstances, the procedure for the taxation of such costs is outlined in Schedules 6A and 6B of the Order. According to the prescribed formula, the advocate-client’s costs in such a case shall be the party and party costs specied in Schedule 6A, augmented by an additional one-half. 16. Respecting item 1, the taxing ocer recognised that the value of the subject matter could not be ascertained. After considering the matter and the parties' submissions, she valued the suit land at Kshs. 50,000,000/-, and arrived at the gure of Kshs. 950,000/- as instructions fees. However, in the absence of a valuation report, pleadings, judgment or settlement that placed the value of the suit land at Kshs. 50,000.000/-, it was not tenable for the taxing ocer to peg the value of the subject matter at this gure. Once she established that the value of the subject matter was unascertainable, she was called upon to exercise her discretion not capriciously but fairly and reasonably under the circumstances, and guided by the rules and principles of law in her assessment of instruction fees. 17. Moreover, there is a congruence of mind that the suit and counterclaim had never taken o since inception and are still pending determination, and consequently, the taxing ocer ought to have taken into account the work undertaken by the advocate up to the time of taxation, which she clearly overlooked. This court determines that the instruction fees of Kshs. 950,000/- awarded to the advocate by the taxing ocer is evidently excessive and does justify an inference that it was based on an error of principle. When faced with similar circumstances, the decision of Leonard Katunga Mbuvi T/A Katunga Mbuvi & Company Advocates v Acrredo AG & 3 others [2013] KEELC 70 (KLR) held: “ As was held in the case of Mayers and Another Vs Hamilton & others (1975) EA 13, an advocate is entitled to claim the minimum instruction fees but he cannot properly claim fees in respect of work he had not done. The entitlement under the instruction fees grows as the matter proceeds. The taxing master should therefore have taken into consideration the work that the Respondent herein had done after ling the two Applications.” 18. As for item no. 3, the taxing ocer properly appreciated that a counterclaim dated 8 November 2021, led by the clients, was a separate suit. This court disagrees with the clients that the plaint and counterclaim constituted one suit. In Kaur alias Kaur v Suri [2024] KEELC 14083 (KLR), the court held thus: “ To my mind, the instruction fee that was awarded for prosecuting the suit vide a Plaint cannot be said to suce for purposes of defending the Counterclaim. For good measure, the Counterclaim was a separate and distinct suit and hence same [counterclaim] attracted instruction fees.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5945/eng@2026-09-29 7

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19. As previously stated, this case is ongoing; the advocate has ceased to act for the clients; the nature of the dispute in the counterclaim is one in which the clients seek declaratory reliefs; and the value of the subject matter is unascertainable. Therefore, having found that the taxing ocer erred in principle in her assessment of item 1, it follows that the assessment of item 3 at Kshs. 950,000/-, which was drawn from the awed assessment of item 1, cannot stand. Therefore, guided by Kenya Airports Authority (Supra) and Leonard (Supra), this court nds that the sum taxed at Kshs. 950,000/- was excessive and based on an error of principle. 20. Regarding item no. 5, Schedule 6 A (2) provides as follows: “ In any case in which a denial of liability is led or in which issues for trial are joined by the pleadings, a fee for getting up and preparing the case for trial shall be allowed in addition to the instruction fee and shall be not less than one-third of the instruction fee allowed on taxation: Provided that — (i) this fee may be increased as the taxation ocer considers reasonable but it does not include any work comprised in the instruction fee; (ii) no fee under this paragraph is chargeable until the case has been conrmed for hearing, but an additional 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 conrmed hearing is adjourned; (iii) in every case which is not heard the taxing ocer must be satised that the case has been prepared for trial under this paragraph.” 21. Based on the cause lists provided, the matter was scheduled for hearing on 8 May 2023 and 19 October 2023 after pre- trial directions had been complied with, but was adjourned at the court’s instance. Thus, it is evident that the advocate prepared the matter for trial, and this court nds no error in the consideration of this item. Nevertheless, having determined that the instruction fees on items 1 and 3 were excessive, it follows that the getting-up fees of Kshs. 633,333/-, which is one-third of the instruction fees, is evidently excessive. This court nds that the taxing ocer erred on principle on this item. 22. Ultimately, this court nds that the chamber summons dated 3 March 2026 is merited. The ruling and order of the deputy registrar dated 9th October 2025, and reviewed on 29 October 2025, are set aside, and the appropriate order is that the BOC be remitted for taxation on items nos. 1, 2, and 5. Each party shall bear their respective costs. Consequently, the following nal orders are issued: a. The chamber summons dated 3 March 2026 is allowed, with each party bearing their own costs. b. The advocate-client bill of costs dated 5 May 2025 is remitted for taxation before a taxing ocer other than Hon. Victoria Ochanda (Ms.) Deputy Registrar. It is so ordered. DELIVERED AND DATED AT MACHAKOS THIS 29TH DAY OF SEPTEMBER, 2026. HON. A. Y. KOROSS JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5945/eng@2026-09-29 8

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29.09.2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform; In the presence of; Ms. Kanja Court Assistant. Miss Mutuku for the applicant. Mr. Ondiek for the respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5945/eng@2026-09-29 9

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