Francis Mwangi Njuguna T/A Frank Mwangi & Co Advocates v Irene Njoki Karobia & 1 other

strike out the bill as being unfounded, untenable, unconscionable, unjust and mathematically inaccurate and or remit the same for proper taxation or disposal. v. That in the event the Honorable Court decides to remit the bill for taxation the court does give guidance to the Deputy Registrar on factors and parameters to be considered in fair taxation of the Bill. vi. That the costs of this application be provided for. 3. The Application was premised on the grounds on its face and the supporting affidavit sworn by Irene Njoki Karobia wherein she avers that, the thru their erstwhile advocates sought typed Ruling of the Deputy Registrar immediately upon its delivery instead of the reasons but omitted thereupon to lodge the reference within time stipulated. 4. That the Advocate - Client Bill of Costs herein relate to the proceedings in Nakuru High Court Succession Cause No 209 of 2012 (The Estate of Habel Thumi Karobia). i. That, the stated value of the Estate in the pleadings therein (petition) is Kes 5 Million. ii. That, the Deputy Registrar Hon. Nancy Makau taxed the Advocate Client Bill of Costs in this cause on the 19th September 2023 at Kes 8,792,938:00 basing instructions fees on arbitrary figure of 5 Billion that was proposed by the applicant without any basis at all. iii. That, the Taxing Master totally ignored the fundamental question that was raised in objection to the bill namely whether the Bill was competently before her and or whether there was retainer or instructions from the Respondent to the Applicant. iv. That, the Taxing Master totally ignored the proceedings in respect of which the items in the bill were stated to have been raised or charged and granted costs to the applicant for proceedings that were taken long before the applicant came into the subject matter. Indeed, long before even the stated firm was established. v. That, the Taxing Master ignored the fact disclosed in the proceedings that the applicant came on record if at all only to apply for leave to cease acting which fact was material in determining instructions fee if any and or the very fact that the applicant had no instructions to act for the Respondent and purported to take over the matter from the previous firm without instructions. vi. That, the Taxing Master abdicated her mandate and allowed items and awarded costs in respect of proceedings which were either not taken in the subject file and or were not undertaken in any event by the applicant herein. vii. That, the Taxing Master abdicated her mandate to tax the bill by allowing clearly inflated or otherwise illegal items ostensibly because they were supposedly not opposed, even in respect of hearings that have never been conducted. viii. That, the Taxing Master appear to have taxed the bill without reference to the parent file and or without regard to the relevant Advocates Remuneration Order. ix. That, the certificate of Taxation dated the 2nd October 2023 is colored in mischief, injustice, abuse of the legal process and is intended to falsely enrich the applicant. x. That, the application herein is made in good faith, promptly and without undue delay. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16637/eng@2025-10-03 2

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5. The Advocate on his part reciprocated to the reference by Filing a Notice of motion dated 14th November 2023 seeking for the adoption of the certificate of taxed costs dated 2nd October 2023 as an order of the court. 6. Midstream in the Proceedings another Advocate Enos Owino Gati, Trading as Gati &Co. Advocate, filed his own bill of costs dated 14th November, the same elicited a notice of preliminary objection by the Clients-Applicants. The Advocate contends that he was instructed to defend the Client advocates bill of costs in this miscellaneous cause and thus became a party. 7. This court notes that whereas the advocate might have been instructed to defend the taxation, his taxation of Advocate -Client costs cannot be undertaken by the high court but rather by the taxing master separate from the instant reference. 8. While the court notes of the pleadings dated 20th November 2023 by Advocate Enos Owino Gati, his alleged bill of costs is not on file. 9. This Court hereby upholds the notice of preliminary objection that any taxation based on instructions to defend the taxation shall be undertaken separate from this reference. Analysis and Determination 10. This Court has considered the lengthy pleadings by the substantive parties herein that includes the Client-Applicants written submissions dated 14th December 202, the Advocate-Respondent’ Written submissions dated 2nd May 2024, the Advocate-Respondent’ Replying Affidavit dated 2nd May 2024, Supplementary Affidavit dated 3rd June 2024, by Irene Njoki Karobia and Supplementary written Submissions by Irene Njoki Karobia dated 3rd June 2024, and has refined three (3) issues for consideration; i. Whether the court should grant the Clients-Applicants leave to file this reference out of time or otherwise admit and determine the reference out of time may extend the time of filing a reference. ii. Whether the Court should set aside the decision of Honorable Nancy Makau DR dated the 19th September 2023 taxing the Advocates Client Bill of Costs at Kes 8,792, 563/ and strike out the bill as being unfounded, untenable, unconscionable, unjust and mathematically inaccurate and or remit the same for proper taxation or disposal? iii. who should bear the costs of the application? 11. With regard to the matter of time extension, clause 11 of the Advocates' Remuneration Order gives the court the authority to prolong the period during which a reference from the taxing master's decision may be filed, notwithstanding the expiry of 14 days. 12. To the mind of the Court, the extension of time is not a right of a party but an equitable remedy that is available to a deserving party who must lay a basis for the extension as was held in the case of the County Executive of Kisumu v County Government of Kisumu & 8 Others (2017) eKLR. 13. The Clients-Applicants have attributed the delay in filing the reference to the delay in obtaining a copy of the detailed ruling entailing the reasons for the decision from the Taxing master despite numerous efforts to acquire the same in good time. They also attribute the one-month delay on seeking for reasons to the change of advocates. In view of the foregoing, I find that the Clients-Applicants have established that the failure to file an objection or reference within the prescribed time was not deliberate, nor a lack of diligence on their part. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16637/eng@2025-10-03 3

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14. I therefore find that, the Clients-Applicants are deserving of the court’s discretion to enlarge the time within which to file the reference. And thus admit the reference as duly filed within time. 15. It is not in dispute that the Clients-Applicants had instructed the Advocates-Respondent to represent them in Nakuru High Court Succession Cause No 209 of 2012 (The Estate of Habel Thumi Karobia) wherein Mr. Frank Mwangi Advocate was in the personal conduct while practicing in the name and style of Ikua Mwangi & Co Advocates a firm which subsequently split into Frank Mwangi & Co. Advocates and he remained with the conduct of the said succession before the Clients-Applicants instructed another law firm of advocates thus prompting the Respondent to file the Bill of Costs dated 10th June, 2022, which was taxed at Kshs.8,792, 563/= and a certificate of costs issued to that effect on 2nd October 2023. 16. The Applicant now seeks to stay the execution of the certificate of costs issued. The conditions for granting a stay of execution are stipulated under Order 42 Rule 6 of the Civil Procedure Rules. The order provides the conditions to be considered before granting a stay to wit the following:a. Whether there is a substantial loss. b. Whether the application has been filed without unreasonable delay. c. Provision of suitable security for due performance of the terms of the decree. 17. As to whether the application was filed without unreasonable delay, the Applicant stated the ruling was issued on 19th September, 2023 and a request for a copy of the detailed ruling was made on the 19th October 2023 as they engaged new advocates. Having established that the delay in filing the reference was occasioned by the delay in obtaining a copy of the detailed ruling which is an act beyond the efforts of the Applicant, I find therefore the delay has been adequately explained. 18. As to the issue of substantial loss, the Court notes the amount taxed is Kshs.8,792, 563/= is a substantial sum which may amount to substantial loss if the Advocate is allowed to execute and in the event the Applicant succeeds in setting it aside, the Clients-Applicants may fail to recover the same from the Respondent. 19. I am also of the view that such colossal sum in the nature of advocates legal fees ought to be consented to by All beneficiaries and the personal representatives cannot commit the estate of the deceased to such an extent bearing in mind that the succession proceedings are still alive. 20. The issue in the contention is that the Taxing Master erred in principle, by disregarding the provisions as contained in Advocates Remuneration Order and taxing the Item number one against a value of the estate. This was a misdirection. Under Schedule X of the Advocates Remuneration Order, the Respondent instruction fees were supposed to be assessed under Paragraph 1A (f) and Paragraph B (a). 21. The instruction fees of the Respondent were to be assessed under “ …..other applications or proceedings under any provision of the Law of Succession Act not otherwise provided in this schedule: such sum as the taxing officer shall consider reasonable, but not less than …” 22. The Taxing Officer therefore committed an error of principle in assessing the instruction fees to be paid to the Respondent. The sum that was assessed as instruction fees of Kshs.5,000,000/- was manifestly excessive and exorbitant that it constituted a clear error of principle. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16637/eng@2025-10-03 4

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23. I am satisfied that the issues raised by the Applicant are pertinent issues that go to the core of the Certificate of Taxation that ought to be unpacked by the Taxing master during fresh taxation, noting that as alleged by the Applicant that the primary matter HCCC No. 127 of 2016 is still pending in court. The court is alive to the fact that whenever the advocate has ceased having the conduct of a matter he/she may proceed to raise a bill of costs in instances where the client refuses to pay. This position was stated in the Court of Appeal in the case of Machira & Co. Advocates v Arthur K. Magugu & another Civil Appeal No. 199 of 2002 [2012] eKLR held that:“ An advocate whose instructions have been terminated is entitled to immediate payment of his fees for the services rendered. If the client refuses to pay upon demand, he is entitled to file his bill and have it taxed immediately. He does not have to wait until the matter is concluded. He also does not have to depend on the advocate on record to recover his fees for him. The client might compromise with his current advocate on his fees and no bill is filed.” 24. This Court is of the position that, an advocate has a higher professional and ultimate responsibility of ensuring a retainer/instruction note is executed detailing the nature of the instruction, mode of payment and agreed fees. The absence of formal instruction points at failings by advocates to properly advise their clients and mitigate on disputes such as this one. 25. It remains unclear whether the Applicants -Clients had been served with a fee-note by the Advocates and declined to settle the same, and this court should guard against any form of unjust enrichment by advocates, in this instance, a fresh taxation offers the parties an opportunity to justify the costs and the Advocates shall surely be entitled to fees for actual work done. 26. In this instance, it is of importance that the bill of costs as filed by the Advocate be subjected to fresh taxation by a taxing officer other than Honorable Nancy Makau DR, and the taxing officer shall be expected to take into account the nature of work done undertaken by the Advocate and the pleadings filed in court. 27. This Court reiterates the importance of the taxation to be undertaken within the Nakuru High Court Succession Cause No 209 of 2012 (The Estate of Habel Thumi Karobia), such that the Taxing master will be able to consider the nature and extent of work undertaken 28. Having regard to the findings and observations captured above, I am satisfied that the Applicant has made out a case for the granting of the orders sought in the application and hereby set-aside the ruling dated 19th September, 2023. In this circumstance, I allow the application dated 10th November 2023 in the following terms: i. The Application herein is admitted as a reference against the taxation proceedings and the ruling of the taxing master delivered on 19th September 2023 which is hereby set-aside. ii. The Certificate of Taxation Dated 2nd October 2023 is hereby Set-aside. iii. The Application by the Advocate dated 14th November 2023 is found to be without merit and the same is dismissed. iv. The Advocate - Client Bill of Costs dated 10th June 2022 is hereby remitted back for taxation by any other Deputy Registrar other than Honorable Nancy Makau DR. v. The Costs of the Application is awarded to the Applicants-Clients. It is so ordered. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16637/eng@2025-10-03 5

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DATED, SIGNED AND DELIVERED AT NAKURU ON THIS 3RD DAY OF OCTOBER 2025. MOHOCHI S.M. JUDGE. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16637/eng@2025-10-03 6

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