Mutua Waweru & Company Advocates v National Bank of Kenya Limited

4. The application is supported by the affidavit sworn on even date by Chrispus Maithya, the Applicant’s Legal Officer. It was deponed that the Plaintiff/ Applicant sought declaratory and injunctive orders against the Defendants in the primary suit. The matter was settled by consent for Kshs. 70,000,000.00 in favour of the Plaintiff. 5. The Taxing Master was faulted for relying on the pleadings to ascertain he value of the subject matter instead of relying on the value ascertained in the consent judgment. The taxed award based on the pleadings is excessive and ought to be set aside. 6. The application is opposed through a Replying Affidavit dated 14/03/2025 sown by Daniel W. Muiruri, Managing Partner of the Respondent. In a nutshell, he deposes that the Taxing Master’s decision is proper, beyond reproach and urges the court to uphold the same since the Taxing Master to relevant principles and the applicable laws. 7. It is averred that the Applicant/ Client being a secured creditor sought the legal services of the Respondent to safeguard their interests where the Defendants in the primary suit threatened to sell by way of auction the assets in an all assets debenture dated 26/08/2014 which had been used to secure a loan of principal sum of Kshs. 735,000,000.00, plus interest, charges and other costs all amounting to Kshs. 942,794,251.45 and USD 348,014.70, which amount was the basis of the taxation of the instruction fees by the Taxing Master. 8. It was further deponed that the consent ought to be read wholesomely as it did not in any way extinguish the value of the subject matter to the sum of Kshs. 70,000,000.00 as the security in form of all assets debenture was still being held by the Client/ Applicant, and the same was acknowledged in the consent. 9. The Respondent further made reference to the settlement term (3) of the consent where the Applicant reserved the right to pursue the 1st Defendant/ guarantors to recover money owing to it or enforce securities held by the Applicant in various loan securities advanced to the 1st Defendant. Therefore, the Taxing Master did not err in venturing beyond the consent to ascertain the true value of the subject matter. 10. It was also deponed that after the suit was struck out in favour of the 2nd Defendant in the primary suit, the instruction fees was based on the pleadings. A reference against the decision of the Taxing Master. The High Court affirmed the Tax Master’s decision. On appeal to the Court of Appeal, the Court of Appeal rested the matter in affirming that the subject matter value was as per the pleadings. 11. With respect to items 2,4,12,20 and 22, the same were drawn to scale as per the folios and the same can be verified from the documents filed alongside the Bill of Costs. As for items 6 and 15, service was done from the Respondent’s office in Nairobi to Mombasa Registry, hence the items were drawn to scale. 12. Directions were taken to have the application heard by way of written submissions. Both parties complied by filing their rival submissions. Analysis and Determination 13. I have carefully considered the application, the response, the submissions, the authorities cited as well as the law and the only issues for determination are; a. Whether the application is merited. b. Corollary to this is the issue of costs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19534/eng@2025-12-18 2

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14. The application is basically a reference on the Taxing Master’s ruling dated 06/02/2025. The role of this court on a reference is clearly delineated. In Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR, the Court of Appeal held as follows: “ …On a reference to a judge from the taxation by the Taxing Officer, the judge will not normally interfere with the exercise of discretion by the taxing officer unless the taxing officer, erred in principle in assessing the costs…” 15. In Arthur v Nyeri Electricity Undertaking [1961] EA 497, the predecessor of the Court of Appeal observed as follows: “ …where there has been an error in principle the court will interfere; but questions solely of quantum are regarded as matters with which the taxing officers are particularly fitted to deal and the court will interfere only in exceptional cases…” 16. The Applicant’s complaint is that the fees awarded to the Respondent was manifestly excessive thus inviting this court’s interference on the same. Its primary reason is that the value of the subject matter was ascertained from the pleadings instead of the consent judgment. 17. In Joreth Limited v Kigano & Associates [2002] eKLR, the Court of Appeal held as follows: “ …We would at this stage point out that the value of the subject matter of a suit for the purposes of taxation of a bill of costs ought to be determined from the pleadings, judgment or settlement (if such be the case) but if the same is not so ascertainable the taxing officer is entitled to use his discretion to assess such instruction fee as he considers just, taking into account, amongst other matters, the nature and importance of the cause or matter, the interest of the parties, the general conduct of the proceedings, any direction by the trial judge and all other relevant circumstances…” 18. Further, the Court of Appeal in Peter Muthoka & Another v Ochieng & 3 others NRB CA Civil Appeal No. 328 of 2017 [2019] eKLR did expound on the principles as laid in the case of Joreth Ltd v Kigano & Associates (Supra) and set down the proper basis of taxing the instruction fees as follows; “ It seems to us quite plain that the basis for determining subject matter value for purposes of 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 had 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”. 19. The Bill of Costs whose ruling is subject to this appeal, was taxed after the consent judgment for Kshs. 70,000,000.00 was entered. It cannot be ignored that the subject matter was a credit facility of over Kshs. 700 million which was secured by an all assets debenture. I do agree with the submissions of the Respondent that the consent between the parties does not reduce the value of the subject matter. 20. This is manifest in the consent where the Applicant’s rights to pursue the 1st Defendant/ Guarantors to recover money owing to the Plaintiff, and to enforce such securities as may be held by the Plaintiff……. for the various loan facilities advanced to the 1st Defendant were not extinguished, hence the value of the subject matter was not disturbed by the consent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19534/eng@2025-12-18 3

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21. Further, the advocate was instructed based on the specific sums of money as pleaded in the Plaint. The Respondent relied on the provisions of Paragraph 13A of the Advocates Remuneration Order and the case of Mwangangi & Company Advocates v Machakos County [2018] eKLR where it was held as follows; “ The Taxing Officer is thus not only limited to the pleadings, judgment and settlement in determining the value of the subject matter of a suit, and is granted such discretion by paragraph 13A of the Advocates (Remuneration) Order which provides as follows; ‘For the purpose of any proceeding before him, the taxing officer shall have power and authority to summon and examine witnesses, to administer oaths, to direct the production of books, paper and documents and to direct and adopt all such other proceedings as may be necessary for the determination of any matter in dispute before him’. 22. I have also considered the submissions by the Respondent that the issue of instruction fees and the subject value had already been determined by the 3 (3) Judge Bench in Mombasa Civil Appeal No. E052 of 2022. The judgment on instruction fees has not been set aside. The Taxing Officer having based the taxation on the same subject value cannot be faulted. 23. In respect to the items no. 2,4,6,12,15,20 and 22, the same can be verified by the Applicant as it involves documents in their possession as they are court documents. No reasons have been given as to why the same need to be re-taxed. I decline to interfere with the taxed amounts on the said items. 24. As held in Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board (supra), courts should be slow in interfering with a Taxing Master’s exercise of discretion. I have found no error of principle and as such, there is nothing to warrant this court to interfere with the ruling dated 06/02/2025. I have said enough to show that the application dated 18/02/2025 must fail. 25. On costs, the same follows the event. However, it must be remembered that award of costs is discretionary and the court reserves the discretion whether to award the same or not. Though the application has failed, it was not brought in bad faith and the Applicant had bona fides in bringing the same. I therefore direct that each party shall bear own costs. 26. The upshot of the foregoing is that the court renders itself as hereunder: a. The Chamber Summons application dated 18/02/2025 lacks merit and the same is hereby dismissed; and b. Each party to bear own costs. It is so ordered. DATED, SIGNED AND DELIVERED AT MOMBASA THIS 18TH DAY OF DECEMBER, 2025. ……………………… HON. F. WANGARI JUDGE In the presence of; Ms. Musau Advocate for the Applicant Mr. Muiruri Advocate for the Respondent Ms. Salwa, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19534/eng@2025-12-18 4

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