Mary Njeri Kamau v Joel Warwimbo Wangendo

3. That the same was canvassed by way of written submissions and on 13th February 2025, the taxing master delivered a ruling in which she taxed the bill of costs at Kshs 36,005. That in taxing the bill of costs, the taxing master applied the wrong principles in taxing items No. 1 & 17 while the same were clearly set out in the Remuneration Order. 4. Further the taxing master erred in principle: a. in taxing item 1 under schedule 6 paragraph (viii) when the same was not a matter arising during proceeding b. by holding that the motion did not commence the proceedings, contrary to the evidence on record that the matter was commenced by way of a notice of motion c. by failing to hold that the matter having been commenced by way of notice of motion was a suit within the meaning of section 2 of the civil procedure Act, d. in failing to tax item 1 under schedule 6a & 6b of the Advocate Remuneration Order 2014, where the matter was commenced by way of notice of motion and where the value of the subject matter could be ascertained from the proceedings; e. while taxing off item 17 of the bill of costs contrary to established principles of law and contrary to the precedents presented to her; f. by failing to consider the respondent/applicant submissions and the binding authorities cited before her without any lawful cause and or reason 5. That the taxing master misdirected herself on the discretion bestowed upon her by law and omitted to take into account relevant factors thus leading her to make an award that was extremely low in the circumstances to constitute a misdirection of law so as to justify interference. 6. That as the taxing master committed errors in the applicable principle of taxation, the High Court is entitled to interfere with the taxing master exercise of discretion and set aside the taxation. Further this reference is made in good faith and without delay 7. The application was opposed vide a replying affidavit dated 3rd March 2025 sworn by Kinyanjui Theuri an Advocate of Kenya. He deposes that the application is frivolous, scandalous, vexatious and a total abuse of the court process. 8. That in any event the reference is not merited as the taxing officer properly exercised her discretion and did not consider any irrelevant factors in taxing the bill of costs.Tthe respondent argues that the amount of Kshs 20,000 allowed as instruction fees is moderate and not excessive as the application giving rise to the bill of costs was merely one for extension to time within which to prefer an appeal and nothing more. 9. Further, the taxing officer was right in taxing off item number 17 of the bill of costs as the same was not justified to the required standards. In addition, that the applicant has failed to follow the laid down procedure for objection to a decision on taxation and appeal as is clearly set out under section 11 of the Advocates Remuneration Order 2014 and as such his application should be dismissed in limine. 10. That the applicant did not annex any notice to the taxing officer of the items of taxation to which the applicant objects and thus undeserving of this Honourable court’s audience. Furthermore, the applicant has not annexed the reasons advanced by the taxing officer on the basis of the taxation and thus the application is an abuse of the court process and ought to be dismissed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19337/eng@2025-11-07 2

page 2 of 6

11. That the applicant has not sufficiently demonstrated any error of principles committed by the taxing officer in taxing the bill of costs. As such, the award is so far as practicable, consistent with previous awards in similar cases and hence should not be interfered with. That in the interest of justice the instant application be hereby dismissed with costs. 12. The application was disposed of vide filing of submissions. The applicant in submissions dated 16th April 2024 (sic) argued that the suit was commenced by way of a notice of motion application seeking leave to appeal out of time and that the value of the subject matter was ascertainable as Kshs 897,983 being the decretal sum and by the consent of the parties. 13. The applicant relied on section 2 of the Civil procedure Act (Cap 21) Laws of Kenya which defines as suit as any Civil proceeding commenced by any manner “prescribed in law" and argued that a notice of motion is the prescribed manner in law to commence an application seeking leave to appeal out of time. 14. Further, that Schedule 6(1)(a) & (b) of the Advocates (Remuneration) (Amendment) Order, 2014, makes provisions for instruction fees in respect to matters commenced by, inter alia, a notice of motion where the value of the subject matter can be ascertained. 15. That the taxing master erred in taxing the instruction fees under Schedule 6(c)(viii) which deals with matters arising during proceedings under appeals arguing that, there was no pending appeal at the time and therefore the application was a fresh matter. The applicant referred the court to the cases(s) of Geoffrey Karanu Rwenji v Rosemary Wambui Makokha (suing as the widow and personal representative of the Estate of James Aggery Makhoha (Deceased) & 2 0thers [2020] eKLR, Nation Media Group Limited v Kepha Osiago Magare, and Kisumu Civil Appea; No. 35 of 2007 George Arunga Sino t/a Jones Brook Consultants Limited v Patrick J.O & Geofrey D.O Yogo. 16. The applicant further submitted that the taxing master erred by taxing off item 17, getting up fees, as not being justified. That Schedule 6 (2) of the Advocates Remuneration Order 2014 provides that “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”. 17. That the matter was commenced by a notice of motion and fixed for hearing on 28th November 2023 and that such matters proceed to hearing by arguing the application in court which means that getting up fees was earned once it was fixed for hearing. The case of; Nguruman Limited v Kenya Civil Aviation Authority & 3 Others [2014] eKLR was relied on. 18. Furthermore, that the taxing master failed to adhere and/or be bound by the authorities submitted before her, which authorities were on all fours with the instant matter. That the taxing master ought to have given more careful consideration of the cases cited by the applicant as they were binding and if good reason existed distinguished them. 19. Finally, the applicant submitted that it was not necessary to write to the taxing master requesting written reasons for the decision because the ruling already contained detailed reasons. The applicant referred the court to the cases of National Oil Corporation Ltd v Real Energy Ltd & Another [2016] eKLR, Evans Thiga Gaturu v Kenya Commercial Bank Limited [2012] eKLR, KCB Bank Limited & Another v Yeswa Antony Joseph [2022] eKLR, and Ahmed Nassir v National Bank of Kenya Ltd [2006] 1 E.A, where the Courts stated that where the reasons on disputed items are contained in the decision of the taxing master there is no need to seek them simply because sub-rule (2) of Rule 11 of the Advocates Remuneration Order demands it . 20. However, the respondent in submissions dated 25th April 2025 argued that the taxing officer did not err in principle by taxing item number 1 on the instruction fee at Kshs. 20,000, as the notice of motion https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19337/eng@2025-11-07 3

page 3 of 6

application that gave rise to taxation merely sought enlargement of time within which to prefer an appeal. 21. That the amount of Kshs 897,983 was not the value of the subject matter or the amount consented to dispose the appeal but rather security for the appeal that was deposited in a joint interest earning account. 22. Further that an appeal from the subordinate Court to the Superior Court is commenced by way of a Memorandum of Appeal, as Order 42 of the Civil Procedure Rules, 2010 does not contemplate commencing an appeal by a notice of motion application. The applicant relied on the case of; Norah Ndunge Henry & another v Abednego Mutisya & another [2022] eKLR, where it was stated that "A notice of motion is not legally recognized as an originating process. A notice of motion can only be within a properly instituted suit". 23. The respondent argued that in the circumstances the taxing officer did not err in principle in finding that the application did not commence the appeal and it would have been improper to use the security amount as the value of the subject matter. 24. The respondent further submitted that the taxing officer was correct in holding that Item 17 on getting up fees was not justified and cited Schedule 6(2) of the Advocates Remuneration Order, 2014, which provides that a fee for getting up and preparing the case for trial shall be allowed only "in addition to the instruction fee and shall be not less than one-third of the instructions fees allowed on taxation". 25. Further that clause 3 of Schedule 6 of the Advocates (Remuneration) (Amendment) Order, 2014 which provides that getting up fees are awardable in an appeal to the High Court only when the respondent appears at the hearing of the appeal and the Court, at the conclusion of the hearing, has certified the case as proper for consideration of a getting up fee. Thus that provision does not contemplate the award of getting up fees on an application but only upon the hearing of the main appeal 26. That, the applicant’s submission that the application was heard orally on 28th November 2023, is a falsehood meant to mislead the court. That the true position is that the parties had already filed a consent dated 17th November,2023, before this Court which was adopted as a Court order, thus the application had been compromised by way of a consent without going for hearing. 27. That the matter has not been certified by the Court as proper for the award of getting up fees. The respondent prayed that application be dismissed with costs. 28. Having considered the arguments advanced on the appeal I find that the main issues for consideration are whether: a. The definition of a suit under section 2 of Civil Procedure Act and Schedule 6(1) (a)(b) of Advocates Remuneration Order are in tandem. b. In law and practice, a suit can be initiated vide a notice of motion; c. Whether the subject application herein is a suit? https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19337/eng@2025-11-07 4

page 4 of 6

29. A suit is defined under section 2 of the Civil Procedure Act as “ suit” is all civil proceedings commenced in any manner prescribed. “prescribed” under Section 2 means prescribed by rules. “Rules” means rules and forms made by the Rules Committee to regulate the procedure of courts. “pleadings” includes a petition or summons, and the statements in writing of the claim or demand of any plaintiff, and of the defence of any defendant thereto, and of the reply of the plaintiff to any defence or counterclaim of a defendant. 30. In addition, under Section 19 of the Act, “every suit shall be instituted in such manner as may be prescribed by Rules. 31. In the same vein, Order 3 Rule 1 (1) of the Civil Procedure Rules 2010 provides that, “Every suit shall be instituted by presenting a plaint to the Court, or in such other manner as may be prescribed” 32. What then is this other manner prescribed manner of initiating as suit than by a plaint? A suit can also be instituted by presenting a petition or an originating summons, which may then be continued as if it were commenced by plaint, as provided for by the rules. 33. In that regard Court of Appeal in the case of; Board Of Governors, Nairobi School v Jackson Ireri Geta (1999) KLR stated as follows: “ 2. Pleading is defined in Section 2 of the Civil Procedure Act to include a petition or summons, and the statements in writing of the claim or demand of any plaintiff, and of the defence of any defendant thereto, and of the reply of the plaintiff to any defence or counterclaim of a defendant; this definition, is couched in such a way as to accord with Order IV rule 1 (now Order 3 Rule 1) which prescribes the manner of commencing suits, which rule provides that every suit shall be instituted by presenting a plaint to the court, or in such other manner as may be prescribed. 3. The use of the term “summons” in the definition of the term “pleading” must be read to mean “originating summons” as that is a manner prescribed for instituting suits. 4. Chamber Summons is not a manner prescribed for instituting suits and cannot therefore be a pleading within the meaning of that term as used the Civil Procedure Act and Rules and made thereunder.” 34. Consequently, a suit cannot be legally commenced by simply filing a notice of motion, as that is a process used within a properly instituted suit. 35. In the instant matter, the application filed was for leave to appeal out of time. There was no appeal in place. That was a miscellaneous application that if allowed, would enable the applicant file a substantive appeal. It was not capable of giving rise to a judgment that would fully determine the appeal. It cannot then be said to have been a suit, in the light of the afore said provisions 36. Even the provisions of the Advocates Remuneration Order relied on by the applicant must be read and interpreted in the light of the provisions of the statutory provisions of the Civil Procedure Act. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19337/eng@2025-11-07 5

page 5 of 6

Furthermore, if a notice of motion is deemed to be suit under Advocates Remuneration Order, what will be the position where we have a substantive suit and a notice of motion, filed therein. 37. The costs herein were not in respect of the matter in the Chief Magistrate’s court, where the value of the subject could be ascertained from the pleadings, judgment or settlement. 38. Consequently, I find and hold that the arguments by the applicant on the award in respect to item number 1 of the subject bill of costs not tenable. 39. As regard item No. 17 be considered I find and hold there were arguments on the application and was thus well found and should have been awarded. 40. No order is made as to costs on this matter, each party to meet its own costs. 41. It is do ordered. Right of Appeal explained DATED, DELIVERED AND SIGNED THIS 7TH DAY OF NOVEMBER 2025 GRACE L. NZIOKA JUDGE In the presence of: N/A for the applicant Mr. Otieno for the respondent Ms. Hannah: court assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19337/eng@2025-11-07 6

page 6 of 6