Dr John Ritho Kanogo v Thuita Kiiru T/A Thuita Kiiru & Co Advocates & 1 other

Grounds 5. The core grounds are: 1. The taxation award is manifestly high in the circumstances of the instructions and the nature of the matter as to justify reconsideration. 2. The taxing officer misdirected herself on the principles of law applicable thus failed to apply her discretion judiciously. Response 6. The 1st defendant opposed the application through a replying affidavit sworn by Thuita Kiiru on 16.7.2025. 7. The key contentions are: 1. The taxing officer correctly based her findings regarding the instruction fees and the getting up fees on the settlement sum evident from the proceedings before Hon. Mabeya J. 2. The 2nd defendant failed to point out the exact error committed by the taxing officer that would warrant review or setting aside and the principles that she allegedly misdirected herself on. Submissions 8. The 1st and 2nd defendants filed written submissions dated 9.12.2025 and 15.12.2025 respectively. 9. The 2nd defendant contended that the value of the subject matter was indeterminate from the pleadings as the originating summons sought access to the account which relief is in personam. It faulted the taxing officer for awarding instruction fees based on the value of the subject matter being the Kshs. 267,522,688 deposits made to the 1st defendant. It submitted that the taxing officer should have determined the instruction fees in the context of the suit and awarded reasonable compensation for professional work done by the advocate. That by awarding the 1st defendant the instruction fees sought, would constitute unjust enrichment. 10. The 2nd defendant submitted that the taxing officer ought to have considered the nature and importance of the application, the complexity of the matter and the difficulty or novelty of the question raised, the amount or value of the subject matter and the time expended by the advocate. 11. The 2nd defendant highlighted that the proceedings were ultimately dismissed as an application and the 1st defendant’s counsel did little more than brief a notice and a few chambers proceedings. It submitted that in Harambee Co-operative Savings Credit Society Ltd v Munikahand and Co. Advocates [2015] eKLR involving an originating summons and similar issues, the costs were awarded at Kshs. 550,000/-. 12. The 2nd defendant asserted that getting up fees are not applicable as the case was not set for hearing and no hearing took place. That the matter came up for oral submissions on 24.7.2024 before Hon. Mabeya J. 13. The 2nd defendant urged the court to allow its reference application with costs. 14. The 2nd defendant relied on: 1. Joreth Limited v Kigano & Associates [2002] eKLR https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7142/eng@2026-04-23 2

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2. Premchand Raichand Ltd & Another v. Quarry Services of East Africa Ltd & Another [1972] E.A. 162 3. University of Nairobi Another v Moses (Civil Appeal 119 of 2020) [2022] KECA 45 (KLR) 4. Nyangito Co. Advocates v Doinyo Lessos Creameries [2014] eKLR 5. Ramesh Naran Patel v Attorney General [2012] eKLR 15. The 1st defendant asserted that the taxing officer correctly applied the settlement sum as the basis for computation of the instruction fees. It highlighted that on 20.9.2023, the 2nd defendant confirmed that it had remitted Kshs. 267,522,688/- to it. 16. The 1st defendant argued that Harambee Co-operative Savings Credit Society Ltd v Munikahand and Co. Advocates [supra] is not comparable to this matter. 17. The 1st defendant contended that getting up fees were properly awarded because a defence was filed issues were joined and it prepared for hearing. 18. The 1st defendant urged the court to dismiss the 2nd defendant’s reference with costs. 19. The 1st defendant relied on Peter Muthoka & Another v Ochieng & 3 Others [2019] eKLR Analysis and Determination 20. I have considered the reference application, the rival affidavits and submissions. The taxation ruling contained reasons thereof. Therefore, this is a non-issue. The two items that have been challenged by the 2nd defendant are the instruction fees and the getting up fees. Threshold 21. The 2nd defendant ought to demonstrate that the taxing officer erred in principle and that the award is manifestly excessive to warrant the court’s interference. First American Bank of Kenya Ltd v Gulab P. Shah & 2 others [2002] KEHC 1277 (KLR) Instruction fees: Kshs. 4,212,840.30/22. The taxing officer based the instruction fees on the settlement of Kshs. 267,522,688/-. The 2nd defendant asserted that the taxing officer erred by doing so because the value of the subject matter was indeterminable from the OS. On the other hand, the 1st defendant argued that the value of the subject matter was ascertainable from the settlement. 23. In Joreth Ltd v Kigano & Associates [supra], the court observed that: “ …the value of the subject matter of a suit for 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, among other matters, the nature and importance of the cause or matter, the interest of the parties, general conduct of the proceedings, any direction by the trial judge and all other relevant circumstances.” 24. From the above, the court noted the principle that the value of the subject matter ought to be ascertained from either the pleadings, judgment or settlement. The term “or” connotes that it is https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7142/eng@2026-04-23 3

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disjunctive. Therefore, the argument that the value of the subject matter was not ascertainable from the OS does not bar the taxing officer from ascertaining the value of the subject matter from the settlement. 25. The court finds that the taxing officer correctly based the instruction fees on the value of the settlement. The value of the subject matter was ascertainable from the settlement. 26. The 2nd defendant further argued that the taxing officer ought to have determined the instruction fees in the context of the suit and awarded reasonable compensation for professional work done by the 1st defendant. It argued that the award given would result in unjust enrichment. 27. Schedule 6 of the ARO provides a clear guideline as to the instructions to sue in any proceedings commenced by OS. Where a defence or denial of liability is filed, paragraph 1(b) applies. 28. Schedule 6. 1 (c) provides that in a suit where settlement is reached prior to confirmation of the first hearing, date of the suit the fee shall be 85% of the fee chargeable under item 1(b) of this Schedule. 29. At para. 6 of the taxation ruling, the taxing officer noted that: “ This suit was commenced by way of Originating Summons, the defendants filed replying affidavits. The application was heard orally on 24th of July 2023 and a ruling was delivered on the same date and the summons were allowed as prayed. The subsequent mentions were to ensure compliance.” 30. The taxing officer found that the item 1 on instruction fees was drawn to scale since the proper paragraph was 1(b). 31. However, the taxing officer did not apply the 85% provision under Schedule 6 (1) (c). 32. Therefore, the court finds that the taxing officer erred in principle here and that the award was manifestly excessive as it did not factor the reduced labour. 33. The taxation shall be accordingly reviewed in penultimate orders. Getting up fees: Kshs. 1,403,280/34. The 2nd defendant challenged the award of getting up fees because the OS was determined without a trial. Conversely, the 1st defendant argued that he is entitled to the getting up fees because the 1st defendant filed a defence, joined issued he prepared for trial. 35. Para. 2 of Schedule 6 of the ARO states in part that: “ In any case in which a denial of liability is filed or in which issues for trial are joined by the pleadings, 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 allowed on taxation:…” 36. In Nyangito Co. Advocates v Doinyo Lessos Creameries [supra], the court held that: “ With respect to fees for getting up and preparing for trial under Schedule V paragraph 2, no fees is chargeable under the said paragraph until the case is confirmed for hearing and in case where the case is not heard, the taxing master must be satisfied that the case has been prepared for trial.” 28. In this matter, the case did not proceed to trial and getting up fees should not have been awarded.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7142/eng@2026-04-23 4

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37. In Ramesh Naran Patel v Attorney General [supra], the court held that: “ The Item in the Advocates Remuneration Order on Getting Up Fees contemplates involvement by counsel in the preparation of witnesses, witness statements and determination of the matter by viva voce evidence.” 38. From the above, the 1st defendant’s contention that he is entitled to the getting up fees cannot stand. The 1st defendant confirmed that the matter was settled before hearing. 39. Therefore, the ground of the 2nd defendant’s application challenging the getting up fees succeeds. Disposal 40. The application dated 29.5.2025 is allowed in the following terms: 1. the taxing officer’s ruling of 16.5.2025 is reviewed as hereunder. 2. The instruction fee subject of the 1st defendant’s bill of costs dated 5.7.2021 is taxed in accordance with Schedule 6 paragraph 1(b) as read with paragraph 1(c) of the ARO. As the matter was settled prior to hearing, the instruction fee shall be 85% of the fee chargeable under item 1(b) of this Schedule. Therefore, the instruction fee shall be 85% of the taxed amount of Kshs. 4,212,840.30/- which is KE. 3,580,914.26 3. The award for getting up fee is set aside. 4. Costs shall be in the cause. DATED, SIGNED AND DELIVERED AT NAIROBI THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 23RD DAY OF APRIL, 2026 ------------F. GIKONYO M JUDGE In the presence of: Njenga/Ms Kinyua for 1st defendant Dachi for 2nd defendant CA – Ivan/Aggrey https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7142/eng@2026-04-23 5

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