keelc-2026-06149

The Respondent’s Case 5. The Respondent led a replying adavit sworn by Sylvia Witherero Gikunju, dated 9th June 2025, in opposition to the application. 6. The deponent contends that the application lacks merit and should be struck out with costs to the Respondent. She further averred that the Applicant has not demonstrated any error of principle by the Taxing Ocer and is merely seeking to substitute its own assessment for the decision. 7. She asserted that the Taxing Ocer carefully considered the Defendant’s Bill of Costs, the pleadings led by both parties, the Advocates Remuneration Order and the relevant judicial authorities in arriving at the taxation. She maintained that the Taxing Ocer properly exercised her discretion in the taxation and considered the value of the subject matter and the stage of the proceedings before determining the appropriate instruction fees. She maintained that the suit was withdrawn before the hearing commenced or before any substantial trial preparation was undertaken. 8. She argued that the Applicant erroneously assumes that instruction fees should be based on the value of the subject matter, irrespective of the work actually undertaken. She also argued that the taxing principles require the Taxing Ocer to ensure that the costs allowed are fair, reasonable and proportionate to the work done, as advised by the advocates on record. 9. She contended that the Taxing Ocer relied on established authorities in reaching the decision. She argued that, having found that the matter was withdrawn before the full hearing, the Taxing Ocer properly exercised his discretion by assessing the instruction fees at Kshs 300,000/- and by allowing the getting-up fees to be proportionate to the instruction fees. 10. She maintained that the Taxing Ocer found that all remaining items relating to drawing, perusal, attendance, and disbursements were properly drawn. She argued that the Defendant did not identify any specic item in the bill where the Taxing Ocer misapplied the law or ignored relevant material. In conclusion, she urged the Court not to interfere with the decision. 11. The Reference was canvassed by way of written submissions. The Applicant’s Submissions 12. The Applicant led its submissions dated 5th May 2026. 13. On behalf of the Applicant, Counsel submitted that the value of the subject matter was ascertainable from the pleadings as Kshs. 103,986,750/-. Counsel argued that, in the absence of any dispute as to the value or the applicable provision of the law, the Taxing Master was obliged to anchor the award on Schedule 6, Rule 1(b) of the Advocates Remuneration Order. 14. Counsel submitted that reducing the instruction fees from Kshs 2,806,864.33/= to Kshs 300,000/constitutes an 80% downward deviation from the scale, is unjustied, and does not constitute a proper exercise of discretion. To support this argument, Counsel relied on Republic v Medical Practitioners & Dentists Board & 2 others Ex parte Mary A Omamo-Nyamogo (2017) KEHC 9241 (KLR). 15. Counsel further submitted that the sum awarded by the Taxing Ocer is inordinately low and unjustied, thereby constituting an error of principle. Counsel relied on First American Bank of Kenya v Shah and others (2002) E.E.L.R. 64 to address the legal parameters governing a Court’s interference with the Taxing Master’s decision. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6149/eng@2026-09-18 2

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16. Counsel argued that even if the matter was disposed of at the preliminary stage, the Defence Counsel was required to analyse the pleadings, enter an appearance, le a defence, conduct research, draft submissions, and present a preliminary objection to the Court's jurisdiction, which conclusively determined the suit. 17. Counsel contend that the award of Kshs 300,000/= is vague, unjustied, and indicative of an improper exercise of discretion. Counsel further submitted that an award of Kshs 1,800,000/- in instruction fees is reasonable and aligns with the principles of taxation. 18. In conclusion, Counsel urged the Court to allow the application as prayed. 19. As at the time of writing this judgment, the Respondent had not led its submissions as directed. Analysis and Determination 20. Having considered the application, the response, and the Applicant’s submissions, the only issue for determination is whether the Taxing Ocer’s decision should be set aside. 21. The Principles of taxation were aptly stated in Premchand Raichand Ltd and another v Quarry Services of East Africa Ltd and others (1972) EA 162, where the court noted as follows: 22. “ (a) successful litigant ought to be fairly reimbursed for costs he has had to incur; (b) that costs be not allowed to rise to such a level as to conne access to justice to the wealthy. (c) that the general level of remuneration of advocates must be such as to attract recruits to the profession and (d) that as far as practicable there should be consistency in the awards made; (e) that there are no mathematical formulae to be used by the taxing master to arrive at the precise gure. Each case has to be decided on its merits and circumstances; (f) the taxing ocer has discretion in the matter of taxation, but he must exercise the discretion judiciously and not whimsically; (g) the court will only interfere when the award of the taxing ocer is so high or so low as to amount to an injustice to one party.” In First American Bank of Kenya v Shah & others [2002] 1 EA 64, the Court stated as follows: 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 on taxation was based on an error of principle, or the fee awarded was so manifestly excessive as to justify an interference that it was based on an error of principle. 23. The Applicant contends that the Taxing Ocer was obliged to award instruction fees based on the value of the subject matter, which was ascertainable from the pleadings as Kshs 103,986,750/=. 24. Ascertaining the value of the subject matter provides the starting point for determining the applicable basic instruction fees. It does not, by itself, remove the Taxing Ocer's discretion to assess the appropriate instruction fee. The Advocates Remuneration Order expressly permits the Taxing Ocer, in appropriate circumstances, to increase or reduce the prescribed fees. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6149/eng@2026-09-18 3

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25. In Joreth Ltd v Kigano & Associates (2002) 2 EA 398, the Court of Appeal held that when the instruction fees cannot be ascertained, the Taxing Ocer exercises discretion, taking into account the nature and importance of the matter, the interests of the parties, the general conduct of the proceedings, and other relevant circumstances. 26. In the matter at hand, the fact that the value of the subject matter was pleaded as Kshs 103,986,750/= does not, of itself, entitle the Applicant to Kshs 2,806,868.33/=. 27. It is not in dispute that the suit was determined on a preliminary objection and did not proceed to a full hearing. The Applicant highlighted the work undertaken before the suit was determined, which is relevant to the assessment of costs. The mere fact that the advocate undertook research, drafted pleadings and submissions, or argued the preliminary objection does not, of itself, establish that the Taxing Ocer erred in principle in the amount ultimately awarded. 28. I have considered the Applicant’s complaint that the award of Kshs 300,000/- was inordinately low. In my view, the complaint, without demonstrating the particular principle the Taxing Ocer failed to apply, amounts to a challenge to the quantum. A reference is not an appeal on quantum. 29. The Applicant proposed an alternative gure of Kshs 1,800,000/-. The Applicant has provided no basis for this Court to substitute that gure for the Taxing Ocer's assessment. If the Court were to do so, it would eectively be undertaking taxation afresh without rst establishing an error of principle that warrants intervention. 30. The Applicant has not identied any particular item in the bill, other than the instruction fees, in respect of which the Taxing Ocer misapplied the law or failed to consider relevant material. 31. In the absence of any error of principle, the instant application lacks merit and is accordingly dismissed with costs to the Respondent. RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 18TH DAY OF SEPTEMBER, 2026. ………………………… HON. T. MURIGI JUDGE In the presence of: Ms Motari holding brief for Ojienda for the Defendant Ms Salim holding brief for Mwangi for the Plainti Vena – Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6149/eng@2026-09-18 4

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