Cannon General Insurance Company (k) v S.m Chege & Company Advocates

10. The first method, applying a 50% increase to prescribed fees, yields a total of Ksh. 170,330. 11. After deducting the Ksh. 215,800 already paid, this shows an overpayment of Ksh. 45,470. 12. The second method, applying a 50% increase to the actual Party & Party costs awarded in the primary suit, would result in an even higher overpayment. 13. Consequently, the Respondent seeks the taxation off of the disputed amounts and a finding that a significant sum must be refunded by the Applicant. 14. The respondent's written submissions, filed in response to the Reference against the Taxing Officer's ruling, requests that the High Court find the matter settled and closed, or in the alternative, dismiss the Reference and uphold the taxed costs. 15. The Advocate contends that the respondent’s challenge regarding an unaccounted payment of Kshs. 215,800 fails because no evidence of the second payment (Kshs. 130,400) was provided during the taxation proceedings; although such evidence is now annexed to the Reference, the Advocate confirms its validity and submits that, had it been presented earlier, the Bill of Costs would have been withdrawn. 16. Consequently, the Advocate prays for the matter to be marked as settled. 17. Should the Court proceed to consider the merits, the Advocate defends the Taxing Officer’s award, arguing that the instruction fees of Kshs. 117,000 were properly assessed considering the skill, time, and subject matter involved, and that the discretion exercised in allowing the disputed items was lawful under Rule 16 of the Advocates Remuneration Order and the Notes to Schedule 7, which permit costs necessary for the attainment of justice. 18. The Advocate therefore urges the Court to uphold the taxation in its entirety and dismiss the Reference with costs. 19. The issues for determination in this reference are as follows; i. Whether this Reference should be marked as settled and the proceedings terminated on the basis of payments made by the client; ii. Whether the Taxing Officer’s ruling on the Advocate-Client Bill of Costs dated 13th August 2025 should be upheld, varied, or set aside. 20. On the first issue, the Advocate’s oral application to have the matter marked as settled is grounded on the subsequent confirmation that payments totalling Kshs. 215,800 were made by the Client. 21. While the Advocate submits that the absence of evidence for part of this sum during the initial taxation led to the proceedings, the Client vehemently opposes this course, arguing that it should not be subjected to further litigation when it holds the view that it has overpaid. 22. The principle guiding such an application is that of substantive justice and the finality of disputes. A court will not permit a party to resile from a position that has crystallised into a formal judicial process merely on account of a belated revelation of evidence that was within its knowledge or could have been procured with due diligence. 23. The duty of candour rests upon litigants to present all relevant material at the appropriate stage. 24. The Advocate’s admission that the Bill would have been withdrawn had the full payment evidence been presented earlier, though persuasive, does not automatically compel the Court to terminate the Reference. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/576/eng@2026-01-29 2

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25. The Client’s opposition, coupled with its substantive challenge to the quantum of costs taxed, raises a legitimate dispute that requires adjudication to conclusively determine the parties’ rights and liabilities. 26. To mark the matter as settled in these circumstances would be to ignore the contested calculation of what constitutes a full and final settlement. 27. Consequently, the oral application to mark the matter as settled is disallowed, and the Court will proceed to determine the Reference on its merits. 28. Turning to the substantive challenge, the core of the Client’s reference is that the Taxing Officer erred in principle by awarding an excessive instruction fee and by allowing items that were either unjustified or incorrectly calculated. 29. The law governing this review is well settled. This Court, sitting in its appellate jurisdiction over a taxing officer’s decision, will not interfere with the exercise of discretion merely because it might have arrived at a different figure. 30. Interference is only warranted where the taxing officer erred in principle, took into account irrelevant factors, or failed to consider relevant ones. 31. This principle was firmly established in the case of First American Bank of Kenya Ltd v Shah and Others [2002] 1 EA 64, where the Court of Appeal held that “the taxing officer’s discretion in assessing costs is a judicial one and must be exercised judicially. 32. It should not be interfered with on a reference unless it is shown that it was exercised wrongly in principle.” 33. In applying this test, the Court has examined the arguments. The Client’s contention is that the primary suit was undefended and that, therefore, the instruction fee ought to have been based on the lower scale under Schedule 7 of the Advocates Remuneration Order, yielding a base of Kshs. 58,500. 34. The Advocate, however, defends the awarded sum of Kshs. 117,000. 35. The Notes to Schedule 7 grant the taxing officer discretion to increase the prescribed fee where the matter requires “special responsibility, skill, or labour by reason of the difficulty, novelty, or importance of the matter.” 36. The Taxing Officer’s ruling, as implied from the defence of it, evidently considered these factors. 37. Without a detailed record of the reasoning from the ruling under challenge, this Court cannot conclude that the officer applied a wrong principle in arriving at the figure. 38. The mere assertion by the Client that the suit was simple and undefended is insufficient to vitiate the officer’s discretion, which is presumed to have been properly exercised. 39. Regarding the disputed attendances and other items, the legal framework is provided by Rule 16 of the Advocates Remuneration Order, which states that in Advocate-Client costs, “the taxing officer may, in addition to the costs allowable in a party and party bill, allow such costs as were necessary or proper for the attainment of justice or for defending the rights of the client.” 40. The allowance of items such as instructions to enter appearance, perusing a pleadings, and various attendances fall within this broad discretion. 41. The Client’s proposal to reduce specific attendances to a flat rate of Kshs. 1,400 is an invitation for this Court to re-tax the bill, which is not its proper function. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/576/eng@2026-01-29 3

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42. As was stated in Joreth Ltd v Kigano and Associates [2002] 1 EA 92, the role of the judge on a reference is “to see that the taxing officer has applied the correct principles and has not taken into account any irrelevant factor.” 43. The Client has not demonstrated that the Taxing Officer applied a principle contrary to Rule 16 or the Schedules. 44. The alternative calculations presented by the Client, while illustrative of its position, do not in themselves reveal an error in principle in the officer’s award. 45. However, a critical and overriding factor emerges from the submissions. Both parties now confirm that a total of Kshs. 215,800 has been paid by the Client to the Advocate. 46. The Client’s case, supported by its alternative calculations under Schedule 7B, is that this sum may even exceed what is lawfully due. The Advocate’s prayer for the matter to be settled is a tacit, though conditional, acknowledgment of the significance of this payment. 47. The ultimate purpose of a reference on taxation is to ascertain the correct sum payable. 48. In the interest of justice and to avoid a multiplicity of proceedings, this Court must consider the implication of this admitted payment against the taxed sum. 49. The taxed costs as upheld by the Taxing Officer stand, but the Client is entitled to a credit for all payments made. 50. The final executable decree must reflect the net position. Since the exact figure of the taxed costs upheld by the officer is not disputed in the specific sense of a mathematical total, but rather in the principle of its computation, and given the Court’s finding that no error in principle has been demonstrated, the taxation is upheld. 51. The practical effect is that the Advocate is entitled to the taxed costs as per the ruling of 13th August 2025, subject to the deduction of the Kshs. 215,800 already received. The taxing officer gave credit for Kshs. 85,400. 52. In the final analysis, and for the foregoing reasons, the Advocate’s oral application to have the matter marked as settled is dismissed. The Reference filed by the Client against the Taxing Officer’s ruling of 13th August 2025 is likewise dismissed, and the said ruling is hereby upheld. 53. The difference between the amount paid of Kshs. 215,800 and the amount for which credit was given by the taxing officer of Kshs. 85,400 which is Kshs. 130,400 to be deducted from the total taxed costs as certified in the ruling of 13th August 2025. 54. Each party shall bear its own costs of this Reference DATED, SIGNED AND DELIVERED THIS 29TH DAY OF JANUARY 2026 VIRTUALLY VIA MT TEAMS AT VOI HIGH COURT. ASENATH ONGERI JUDGE In the presence of:Court Assistant: Mabishi/Millicent ………………………………………….for the Respondent/Applicant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/576/eng@2026-01-29 4

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…………………………………………..for the Applicant/Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/576/eng@2026-01-29 5

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