Cb Gor & Gor v Kenindia Assurance Co Limited

settlement as provided under Schedule VII of the Advocates Remuneration Order, 2009, the Taxing Officer erred in law and principle in awarding such instruction fees, which amount was exorbitant. 6. That the Bill of Costs appears to have been allowed as notwithstanding having been formally opposed therefore an apparent error of principle by the Taxing Officer. That in allowing all the items as drawn, the Taxing Officer failed to take into account relevant factors and circumstances in the taxation of bills, and that no reasons have been availed by the Taxing Officer for rendering her decision as she did. 7. The Advocate filed a Reply to the Notice of Objection to Taxation dated 30th May 2025 and stated that despite having filed the Notice of Objection, the Client had not filed and/or served them with a reference to the High Court as required under Rule 11 (2) of the Advocates (Remuneration) Order. That Rule 11 (2) provided that where a party objects to a decision of the taxing officer, a reference to the High Court must be made by way of chamber summons within 14 days of receipt of the reasons for the decision. 8. That neither was the reference filed within the prescribed time nor an application made for extension of time. That in the absence of a duly filed reference, the Notice of Objection is of no legal consequence and cannot be used to stay or invalidate the taxed costs. The Advocate therefore prayed that the Certificate of Taxation be adopted as a judgment of the court under Rule 7 of the Advocates Remuneration Order and that a decree be issued accordingly. 9. The Client in rebuttal filed a Further Affidavit sworn on 23rd June 2025 and stated that a notice of objection is to be given in writing to the taxing officer within 14 days after the date of the decision on the items of taxation intended to be objected to in light of Paragraph 11 (1) of the Advocates (Remuneration) Order, 2014. That an objector upon receipt of the reasons from the taxing officer ought to apply to the judge by way of reference of a chamber summons application. 10. The Client further stated that the decision of the Taxing Officer was delivered on 3rd October 2024 and subsequently a Notice of Objection dated 14th October 2024 was filed and served upon the Respondent via email on 16th October 2024, which was within the prescribed time. That despite not receiving any reasons from the taxing officer pursuant to Paragraph 11 (1) of the Advocates Remuneration Order, the Client proceeded to file the Reference. That they subsequently made several follow ups at the registry for hearing of the application so as to effect service upon the Advocate which date was ultimately given for 10th February 2025. That thereafter, the Advocate was served with a copy of the mention notice together with the Reference via email. 11. The Client filed submissions dated 15th July 2025 in support of the Reference dated 14th October 2024 where they argued that the relevant schedule applicable is Schedule VII of the Advocates Remuneration Order 2009 and Schedule V11 of the Advocates (Remuneration) (Amendment) Order 2014 considering the Advocate received instructions to defend the matter in 2011 and subsequent services were offered after enactment of the 2014 Advocates Remuneration Order. 12. The Client submitted that Item 1 on Instruction Fees was opposed pursuant to Schedule VII part I (iii) of the Advocates Remuneration Order, 2009. That given the decretal award was Kshs. 960,000, the amount taxed under the item at Kshs. 90,000 was exorbitant and should be disallowed. That (960,000-500,000=460,000) (2.5%x460,000=11,500) 42,000+11,500=43,500. Therefore, the sum of Kshs. 43,500/= would have sufficed as instruction fees. 13. On attendances, the Client opposed Items 3, 15, 20, 22, 28, 30, 33, 37, 38, 41, 42, 43, 63, 64, and 67. That there was nothing to guide the Taxing Officer in assessing proper attendances, therefore the need to call for the parent file. That pursuant to Paragraph 61 of the Advocates Remuneration Order, expenses incurred unnecessarily, of misconduct or default of the Advocate should not be charged https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4362/eng@2026-03-19 2

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against the Client. That in instances where adjournments were at the behest of the Advocate, such attendances ought not be charged against the Client and should be taxed off. 14. Therefore, Items 15, 20, 22, 28, 30, 33, 38, 41, 42, and 63 were erroneously assessed. That attendances at the registry are not provided for under the Advocates Remuneration Order and as such, Items 3, 37, 64, and 67 ought not to have been allowed as drawn. That attendance under item 43 when judgment was delivered, the sum of Kshs. 3,000 was exorbitant and without basis. That Schedule 6 Paragraph 7 (d) of the Advocates (Remuneration) Order, 2006 provides for fees for attendance for mentions and judgment at Kshs. 1,400. 15. On service, the Client opposed Items 4 and 65 on the basis that there was no Affidavit of Service as evidence of service. That the Advocate did not specify the mode of service used in effecting service, either through a process server or substituted service. That therefore, the charged amount could only be assessed subject to production of evidence of the mode of service used. 16. On writing, receiving and perusal of letters and emails, the Client opposed Items 5, 6, 7, 8, 9, 10, 11, 12, 13, 16, 17, 18, 19, 21, 23, 24, 25, 26, 27, 29, 31, 32, 39, 40, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, and 59. That these items are not provided for under Schedule 7 of the Advocates Remuneration (Amendment) Order of 2014, as they form part of the instruction fees. That allowing them separately from Item 1 of the Bill of Costs is tantamount to double billing or overcharging. The Client relied on the holding in the case of Waiganjo Wachira & Co. Advocates v Pacis Insurance Co. Limited (2019) eKLR. 17. On drawings, the Client opposed Items 2 and 36 that they are not provided for under Schedule VII of the Advocates Remuneration (Amendment) Order, 2009 as they form part of the instruction fees. On disbursement, the Client opposed Items 76, 77, 78, 79, 80, 81, 82, 83, and 84. That disbursements are awardable subject to proof and that they are refunds given to applicants, which can only be taxed off when receipts or documents are availed for consideration by court. 18. That absence of filed receipts, the court should tax off the items. Reliance was on the holding in Ngatia & Associates v Interactive Gaming & Lotteries Limited (2017) eKLR. That the Advocates Remuneration Order provides the manner in which a bill of costs ought to be drawn and that it is a mandatory requirement that dates in which items are charged must be indicated. 19. On futuristic and speculative amounts, the Client submitted that Items 68, 69, 70, 71, 72, 73, and 85 relate to expenses and particulars which at the time of lodging the Bill of Costs for taxation had neither been rendered, incurred nor awarded through the taxation process itself. That these expenses ought to be taken care of pursuant to Paragraph 69 (3) of the Advocates Remuneration Order. That the items indicated should therefore be taxed off from the Bill of Costs. That further, the manner in which the items were drawn violated one-sixth rule provided for under Paragraph 77 of the Advocates Remuneration Order. The Client therefore prayed that this court allows the Reference by striking out the Bill of Costs. Analysis 20. Having considered the Notice of Objection dated 14th October 2024, the Reference dated 28th October 2024, the Reply to the Notice of Objection to Taxation dated 30th May 2025, the Further Affidavit sworn on 23rd June 2025, and submissions dated 15th July 2025, the issues for determination are: a. Whether the Reference was properly before the court b. Whether the Taxing Officer erred in principle https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4362/eng@2026-03-19 3

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21. 22. c. Whether the court should interfere with the taxation d. What orders on costs should issue On whether the reference was properly before the court, Paragraph 11 of the Advocates (Remuneration) Order provides a strict procedure as follows: 1. Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects. 2. The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection. The importance of compliance was emphasized in Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] KECA 325 (KLR) where the Court of Appeal held that: “ … the respondent’s advocates gave notice to the taxing officer of the items he was objecting to and asked the taxing officer to furnish him with reasons for taxation for the objected items. That was within the 14 days stipulated in Rule 11 (1) of the Order. By Rule 11 (2) of the Order the taxing officer was required on receipt of the notice to record the reasons forthwith and forward them to the respondent’s advocates who were then required to file a reference to the judge within 14 days from the receipt of reasons … … Indeed, we are of the view, that if a taxing officer totally fails to record any reasons and to forward them to the objector, as required then that would be a good ground for a reference and the absence of such reasons would not in itself preclude the objector from filing a competent reference” 23. In the present case, the ruling was delivered on 3rd October 2024 and the Notice of Objection dated 14th October 2024 was filed within time. The Client contends that no reasons were supplied by the Taxing Officer, and therefore proceeded to file the Reference. 24. The law is now settled that where reasons are contained in the ruling, time begins to run from the date of the ruling. In Evans Thiga Gaturu, Advocate v Kenya Commercial Bank Limited [2012] KEHC 4274 (KLR), the court held that: “ … First, and foremost, the above provisions presuppose that in delivering their decisions on taxation, the taxing officers only pronounce the results of the taxation without the reasons behind them. In most cases, the court is aware that, taxing officers, in their decisions on taxation do deliver comprehensive rulings which are self-contained thus obviating the necessity to furnish fresh reasons, thereafter. In such circumstances it would be foolhardy to expect the taxing officer to redraft another “ruling” containing the reasons …” 25. Further, failure to wait for formal reasons does not invalidate a Reference where the ruling contains reasons. In Twiga Motors Limited v Dalmas Otieno Onyango [2015] KEHC 8106 (KLR), the court held that: “ In the absence of any affidavit evidence by the Plaintiff annexing copies of the decision it wanted the court to review, the letter giving the taxing master notice of the items it was https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4362/eng@2026-03-19 4

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objecting to and response from the Taxing Master with a view to establishing whether or not its application was filed timeously, the court had no option but not to attach any weight to the said application, the Defendant’s Replying Affidavit and written submissions by both the Plaintiff and the Defendant. Notably, it was not clear to the court to what the Defendant was responding to as there was no affidavit that had been sworn by the Plaintiff in support of its application.” 26. In the circumstances, this court is satisfied that the Notice of Objection was properly filed and the Reference filed on 28th October 2024 was within time. The preliminary objection by the Advocate therefore fails. 27. On whether the Taxing Officer erred in principle, the principles upon which a Judge may interfere with taxation are well settled. In Premchand Raichand Ltd v Quarry Services of East Africa Ltd [1972] EA 162, it was held that: “ That costs must not be allowed to rise to such a level as confine access to the court to the wealthy; That a successful litigant ought to be fairly reimbursed for the costs incurred; That the general level of remuneration of advocates must be such as to attract recruits to the profession, and,; that so far as practicable there should be consistency in the awards made; the court will only interfere when the award of the taxing officer is so high or so low as to amount to an injustice to one party.” 28. Similarly, instruction fees are determined from the value of the subject matter as discerned from pleadings, judgment, or settlement. In Joreth Ltd v Kigano & Associates [2002] KECA 153 (KLR), the court held that: “ 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.” 29. On instruction fees, the Client contends that the decretal sum was Kshs. 960,000 and that instruction fees should have been Kshs. 43,500. This court notes that the Taxing Officer awarded Kshs. 90,000 and that there is no clear demonstration of how the figure was arrived at. 30. Failure to base instruction fees on the ascertainable value of the subject matter constitutes an error of principle as held in Joreth Ltd v Kigano & Associates (supra). Accordingly, this court finds that the award on instruction fees was not properly justified. 31. On attendances, the Client challenged multiple attendance items as unjustified or excessive. Under the Advocates Remuneration Order, attendances must be reasonable and necessary and that costs occasioned by unnecessary adjournments should not be borne by the client. 32. A taxing officer must consider whether attendances were necessary and reasonable. In First American Bank of Kenya Ltd v Shah & 2 others [2002] KEHC 1277 (KLR), the court held that: “ It would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors. And according to the Advocates Remuneration Order itself, some of the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4362/eng@2026-03-19 5

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relevant factors to take into account include the nature and importance of the cause or matter, the amount or value of the subject matter involved, the interest of the parties, the general conduct of the proceedings and any direction by the trial Judge. Needless to state not all the above factors may exist in any given case and it is therefore open to the Taxing Officer to consider only such factors as may exist in the actual case before him.” 33. The blanket allowance of numerous attendance items without clear justification amounts to an error in principle. 34. On drawing, perusal and correspondence, the Client argued that these items form part of instruction fees. In Waiganjo Wachira & Co. Advocates v Pacis Insurance Co. Ltd (2019) eKLR, the court cautioned against double charging where items are subsumed under instruction fees. This court finds that the Taxing Officer failed to interrogate whether the items amounted to duplication. 35. On disbursements, it is trite that disbursements must be strictly proved. In Ngatia & Associates Advocates v Interactive Gaming & Lotteries Limited [2017] KEHC 2789 (KLR), the court held that: “ It is for that reason that the Rules of taxation demand that disbursements be shown separately at the bottom of the bill of costs and there must be presentation of receipts or proof at the time of taxation before the award is made by the taxing officer.” 36. The allowance of disbursements without proof constitutes an error of principle. On futuristic and speculative items, items relating to future or expenses not incurred, are not taxable. Such items offend the principle that costs must be incurred and ascertainable, and their inclusion was erroneous. 37. On whether the court should interfere with the taxation, a Judge will only interfere where there is an error of principle or the award is manifestly excessive. Having found multiple errors, this court is satisfied that the taxation cannot stand. 38. In Arthur v Nyeri Electricity Undertaking [1961] EA 497, the Court held that where taxation is fundamentally flawed, the proper order is to remit the bill for re-taxation. 39. Considering the relationship between the parties prior to the fallout, each party to bear its own costs Determination 40. Accordingly, this court makes the following orders: a. The Reference dated 28th October 2024 is hereby allowed. b. The taxation ruling delivered on 3rd October 2024 is set aside. c. The Advocate/Client Bill of Costs dated 3rd June 2024 is remitted for fresh taxation before a different Taxing Officer. d. Each party to bear its own costs. DATED AND DELIVERED VIRTUALLY AT MOMBASA THIS 19TH DAY OF MARCH, 2026 ……………………….. HON. F. WANGARI JUDGE OF THE HIGH COURT In the presence of: - https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4362/eng@2026-03-19 6

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N/A by the Applicant Ms. Achieng Advocate for Respondent Ms. Getrude, Court Assistant Page 14 of 14 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4362/eng@2026-03-19 7

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