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Introduction
1. Before this Court are two applications. The first in time is the Respondent/Client’s Chamber Summons dated 17th September 2024, and the second is the Applicant/Advocate’s Notice of Motion dated 18th September 2024.
2. I will first outline, consider and determine the Client’s (First) Application before proceeding to the Second (Advocate’s) Application.
A. The First Application
3. The Client’s application dated 17th September 2024 is brought under Paragraph 11(2) of the Advocates (Remuneration) Order, seeking to set aside the taxing master’s ruling delivered on 5th September 2024 on the Advocate–Client Bill of Costs dated 3rd April 2024.
4. The Respondent contended that the taxing master erred in principle and in law by—
a) Allowing item 2 (getting-up fees) for a matter that was not confirmed for trial;
b) Allowing items 7, 13, and 14 as drawn, which were allegedly excessive;
c) Failing to account for an advance payment of Kshs. 284,000;
d) Subjecting the taxed amount to VAT not pleaded; and
e) Increasing the taxed amount by 50 per cent despite party-and-party costs not having been taxed.
5. The Client therefore prayed that the ruling be set aside, the bill taxed afresh, and the costs of the reference be awarded to him.
6. In response, Herbert Jeremiah Ashiruma, Advocate, swore a replying affidavit opposing the application. He deposed that the Advocate filed an Advocate–Client Bill of Costs for Kshs. 2,026,629.50 after the Client failed to pay for legal services rendered. He denied the existence of any fee agreement and asserted that only Kshs. 70,000 had been paid, which was duly reflected in the bill.
7. The Advocate maintained that the bill was properly taxed at Kshs. 1,369,009, with Kshs. 657,620.50 taxed off, and that reasons were provided in the ruling. He further contended that the matter was ready for hearing and that the getting-up fees and charges for drawings under items 7, 13, and 14 were properly awarded on scale. He denied that Kshs. 284,000 had been paid in this matter and maintained that VAT was lawfully applicable.
B. Analysis and determination (Client’s Application)
8. I have considered the record, the affidavits, and the written submissions filed on 29th November 2024 and 31st October 2024 respectively.
9. The issue for determination is whether the taxing master’s ruling delivered on 5th September 2024 ought to be set aside in respect of items 2, 7, 13, and 14.
10. The principles governing interference with a taxing officer’s decision are well settled. In Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd & Others (No. 3) [1972] EA 162, the Court stated that the Court will not interfere with taxation unless the taxing officer erred in principle or the fee awarded is manifestly excessive or inadequate.
11. The above position was reaffirmed in), Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR, where it was held by the Court of Appeal that the discretion of the taxing officer must be exercised judiciously, taking into account the nature and importance of the matter, the complexity of the issues, the amount involved, and the interest of the parties. The Court stated: -
“The learned judge like the taxing officer was exercising judicial discretion when he allowed the reference. This Court cannot interfere with the exercise of that discretion unless it is shown that the learned judge acted on the wrong principles of law. The appeal to this Court from the decision of a judge on reference from a taxing officer is akin to a second appeal and should be governed by Section 72 (1) of the Civil Procedure Act. In our view, such an appeal can only be allowed on any of the three grounds specified in Section 72 (1) of the Civil Procedure Act, that is to say, if the decision is contrary to law or some usage having the force of law; or the decision has failed to determine some issue(s) of law or usage having the force of law or where there is a substantial error or defect in the procedure provided by law which may possibly have produced error or defect in the decision on the case upon merits.”
12. Similarly, in the case of Peter Muthoka & another v Ochieng & 3 others [2019] eKLR, the Court of Appeal held: -
“It is not lost to us … that matters of quantum of taxation properly belong in the province and competence of taxing masters. They fall within their discretion and so the High Court upon a reference will be slow to interfere with them. It is not a wild and unaccountable discretion, however, because it is at its core and by definition a judicial discretion to be exercised, not capriciously at a whim, but on settled principles. When it is shown that there was a misdirection on some matter resulting in a wrong decision, or it is manifest from the case as a whole that the discretion was improperly exercised, resulting in mis-justice, to borrow the holding in MBOGO -vs- SHAH (Supra), then the decision though discretionary, may properly be interfered with. See also ATTORNEY GENERAL OF KENYA -vs- PROF. ANYANG’ NYONG’O & 10 OTHERS, EACJ App. No. 1 OF 2009.”
13. In the present case, it is not in dispute that the Advocate filed an Advocate–Client Bill of Costs dated 3rd April 2024 drawn at Kshs. 2,026,629.50, which was taxed at Kshs. 1,369,009 by the taxing master, leading to the issuance of a certificate of taxation on 10th September 2024.
14. On Getting-Up-Fees (Item 2), the Client’s principal grievance is that the taxing master erred in awarding getting-up fees for a matter that was never confirmed for trial.
15. The Advocate, on the other hand, argued that getting-up fees were properly awarded since the Advocate had prepared the case and complied with pre-trial procedures under Order 11 of the Civil Procedure Rules, 2010.
16. Schedule 6, Paragraph 2 of the Advocates (Remuneration) Order, 2014 provides 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.”
17. In Kaur alias Kaur v Suri [2024] KEELC 14083 (KLR), the Court stated as follows on the issue of getting up fees: -
“Finally, it is also important to underscore that where a matter is confirmed for Hearing, then the successful party is entitled to levy and charge Getting up fees. Suffice it to underscore that Getting up fees is levied at 1/3 of instruction fees. Instructively, the quantum chargeable on Getting up fees is dependent on the instruction fees awarded.”
18. In the instant case, while the Advocate filed both a plaint and an interlocutory application, the record reveals that only the interlocutory motion was heard and determined. There is no evidence that the main suit was ever fixed or confirmed for hearing or that pre-trial directions were taken.
19. I therefore find that the taxing master erred in awarding getting-up fees in the absence of proof that the matter had reached the hearing stage.
20. Regarding items 7, 13, and 14, the Client also challenged the drawing fees allowed under these items, contending that the same were excessive.
21. From the record, I note that the taxing master allowed the items at Kshs. 1,100 for the first four folios and Kshs. 150 for each additional folio. These rates are in accordance with the scale under the Advocates (Remuneration) Order.
22. The law on interference with the taxing master’s discretion is well settled. The Court of Appeal in Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board (supra) where the Court held that on a reference, the judge will not interfere with the taxing officer’s ruling unless it is shown that the decision was based on an error of principle, or the fee awarded was so manifestly excessive as to justify an inference that it was based on an error of principle.
23. Applying the above principles, I find no error of principle in the taxing master’s treatment of items 7, 13, and 14. The items were drawn on scale and properly allowed.
24. In light of the foregoing, I find that the bill of costs was properly taxed save for the award of getting-up fees under item 2.
25. The ruling of the taxing master dated 5th September 2024 is therefore set aside only to the extent of the award of getting-up fees, and the rest of the taxation shall stand as taxed.
C. The Second Application
26. The Advocate’s Notice of Motion dated 18th September 2024 is brought under Order 51 Rule 1 of the Civil Procedure Rules, 2010 and Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, seeking that the certificate of taxation issued on 10th September 2024 for Kshs. 1,369,009 be adopted as a decree of the Court and that warrants of attachment and sale do issue.
27. The Advocate deposed that the Respondent had failed to settle the taxed costs despite being served with the certificate, hence the need to adopt it for execution.
28. The Respondent opposed the application, arguing that it was premature as a reference challenging the taxation ruling had been filed earlier. He maintained that adoption of the certificate before determination of the reference would result in unjust enrichment and prejudice.
29. Having found in the first application that the taxing master erred in awarding getting-up fees, it follows that the certificate of taxation dated 10th September 2024 does not reflect the correct amount payable.
30. The certificate must therefore be amended to exclude the disallowed item before it can be adopted as a decree. As it stands, the certificate is erroneous and unenforceable.
31. This position accords with the decision in Lubulellah & Associates Advocates v N K Brothers Limited [2014] eKLR, where the Court held that a certificate of taxation can only be adopted once the amount has been settled or no reference is pending.
32. Consequently, the application for adoption and execution is premature and devoid of merit, and cannot therefore be allowed at this stage.
Final Disposition
33. In the result, the Court makes the following orders: -
i. The Client’s application dated 17th September 2024 is allowed, and the taxing master’s ruling is set aside, but only in respect of item 2 (getting-up fees).
ii. The Advocate’s application dated 18th September 2024 is dismissed for being premature.
iii. The Deputy Registrar shall amend the certificate of taxation to exclude the getting-up fees and issue an adjusted certificate accordingly.
iv. Once the adjusted certificate of taxation is issued, the Advocate shall be at liberty to file a fresh application for its recognition, subject to the statutory/legal threshold being met.
v. Each party shall bear its own costs.
34. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
27TH NOVEMBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Ms. Wasonga…………..for the Client/Applicant
N/A……………. for the Advocate/Respondent
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Introduction
1. Before this Court are two applications. The first in time is the Respondent/Client’s Chamber Summons dated 17th September 2024, and the second is the Applicant/Advocate’s Notice of Motion dated 18th September 2024.
2. I will first outline, consider and determine the Client’s (First) Application before proceeding to the Second (Advocate’s) Application.
A. The First Application
3. The Client’s application dated 17th September 2024 is brought under Paragraph 11(2) of the Advocates (Remuneration) Order, seeking to set aside the taxing master’s ruling delivered on 5th September 2024 on the Advocate–Client Bill of Costs dated 3rd April 2024.
4. The Respondent contended that the taxing master erred in principle and in law by—
a) Allowing item 2 (getting-up fees) for a matter that was not confirmed for trial;
b) Allowing items 7, 13, and 14 as drawn, which were allegedly excessive;
c) Failing to account for an advance payment of Kshs. 284,000;
d) Subjecting the taxed amount to VAT not pleaded; and
e) Increasing the taxed amount by 50 per cent despite party-and-party costs not having been taxed.
5. The Client therefore prayed that the ruling be set aside, the bill taxed afresh, and the costs of the reference be awarded to him.
6. In response, Herbert Jeremiah Ashiruma, Advocate, swore a replying affidavit opposing the application. He deposed that the Advocate filed an Advocate–Client Bill of Costs for Kshs. 2,026,629.50 after the Client failed to pay for legal services rendered. He denied the existence of any fee agreement and asserted that only Kshs. 70,000 had been paid, which was duly reflected in the bill.
7. The Advocate maintained that the bill was properly taxed at Kshs. 1,369,009, with Kshs. 657,620.50 taxed off, and that reasons were provided in the ruling. He further contended that the matter was ready for hearing and that the getting-up fees and charges for drawings under items 7, 13, and 14 were properly awarded on scale. He denied that Kshs. 284,000 had been paid in this matter and maintained that VAT was lawfully applicable.
B. Analysis and determination (Client’s Application)
8. I have considered the record, the affidavits, and the written submissions filed on 29th November 2024 and 31st October 2024 respectively.
9. The issue for determination is whether the taxing master’s ruling delivered on 5th September 2024 ought to be set aside in respect of items 2, 7, 13, and 14.
10. The principles governing interference with a taxing officer’s decision are well settled. In Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd & Others (No. 3) [1972] EA 162, the Court stated that the Court will not interfere with taxation unless the taxing officer erred in principle or the fee awarded is manifestly excessive or inadequate.
11. The above position was reaffirmed in), Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR, where it was held by the Court of Appeal that the discretion of the taxing officer must be exercised judiciously, taking into account the nature and importance of the matter, the complexity of the issues, the amount involved, and the interest of the parties. The Court stated: -
“The learned judge like the taxing officer was exercising judicial discretion when he allowed the reference. This Court cannot interfere with the exercise of that discretion unless it is shown that the learned judge acted on the wrong principles of law. The appeal to this Court from the decision of a judge on reference from a taxing officer is akin to a second appeal and should be governed by Section 72 (1) of the Civil Procedure Act. In our view, such an appeal can only be allowed on any of the three grounds specified in Section 72 (1) of the Civil Procedure Act, that is to say, if the decision is contrary to law or some usage having the force of law; or the decision has failed to determine some issue(s) of law or usage having the force of law or where there is a substantial error or defect in the procedure provided by law which may possibly have produced error or defect in the decision on the case upon merits.”
12. Similarly, in the case of Peter Muthoka & another v Ochieng & 3 others [2019] eKLR, the Court of Appeal held: -
“It is not lost to us … that matters of quantum of taxation properly belong in the province and competence of taxing masters. They fall within their discretion and so the High Court upon a reference will be slow to interfere with them. It is not a wild and unaccountable discretion, however, because it is at its core and by definition a judicial discretion to be exercised, not capriciously at a whim, but on settled principles. When it is shown that there was a misdirection on some matter resulting in a wrong decision, or it is manifest from the case as a whole that the discretion was improperly exercised, resulting in mis-justice, to borrow the holding in MBOGO -vs- SHAH (Supra), then the decision though discretionary, may properly be interfered with. See also ATTORNEY GENERAL OF KENYA -vs- PROF. ANYANG’ NYONG’O & 10 OTHERS, EACJ App. No. 1 OF 2009.”
13. In the present case, it is not in dispute that the Advocate filed an Advocate–Client Bill of Costs dated 3rd April 2024 drawn at Kshs. 2,026,629.50, which was taxed at Kshs. 1,369,009 by the taxing master, leading to the issuance of a certificate of taxation on 10th September 2024.
14. On Getting-Up-Fees (Item 2), the Client’s principal grievance is that the taxing master erred in awarding getting-up fees for a matter that was never confirmed for trial.
15. The Advocate, on the other hand, argued that getting-up fees were properly awarded since the Advocate had prepared the case and complied with pre-trial procedures under Order 11 of the Civil Procedure Rules, 2010.
16. Schedule 6, Paragraph 2 of the Advocates (Remuneration) Order, 2014 provides 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.”
17. In Kaur alias Kaur v Suri [2024] KEELC 14083 (KLR), the Court stated as follows on the issue of getting up fees: -
“Finally, it is also important to underscore that where a matter is confirmed for Hearing, then the successful party is entitled to levy and charge Getting up fees. Suffice it to underscore that Getting up fees is levied at 1/3 of instruction fees. Instructively, the quantum chargeable on Getting up fees is dependent on the instruction fees awarded.”
18. In the instant case, while the Advocate filed both a plaint and an interlocutory application, the record reveals that only the interlocutory motion was heard and determined. There is no evidence that the main suit was ever fixed or confirmed for hearing or that pre-trial directions were taken.
19. I therefore find that the taxing master erred in awarding getting-up fees in the absence of proof that the matter had reached the hearing stage.
20. Regarding items 7, 13, and 14, the Client also challenged the drawing fees allowed under these items, contending that the same were excessive.
21. From the record, I note that the taxing master allowed the items at Kshs. 1,100 for the first four folios and Kshs. 150 for each additional folio. These rates are in accordance with the scale under the Advocates (Remuneration) Order.
22. The law on interference with the taxing master’s discretion is well settled. The Court of Appeal in Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board (supra) where the Court held that on a reference, the judge will not interfere with the taxing officer’s ruling unless it is shown that the decision was based on an error of principle, or the fee awarded was so manifestly excessive as to justify an inference that it was based on an error of principle.
23. Applying the above principles, I find no error of principle in the taxing master’s treatment of items 7, 13, and 14. The items were drawn on scale and properly allowed.
24. In light of the foregoing, I find that the bill of costs was properly taxed save for the award of getting-up fees under item 2.
25. The ruling of the taxing master dated 5th September 2024 is therefore set aside only to the extent of the award of getting-up fees, and the rest of the taxation shall stand as taxed.
C. The Second Application
26. The Advocate’s Notice of Motion dated 18th September 2024 is brought under Order 51 Rule 1 of the Civil Procedure Rules, 2010 and Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, seeking that the certificate of taxation issued on 10th September 2024 for Kshs. 1,369,009 be adopted as a decree of the Court and that warrants of attachment and sale do issue.
27. The Advocate deposed that the Respondent had failed to settle the taxed costs despite being served with the certificate, hence the need to adopt it for execution.
28. The Respondent opposed the application, arguing that it was premature as a reference challenging the taxation ruling had been filed earlier. He maintained that adoption of the certificate before determination of the reference would result in unjust enrichment and prejudice.
29. Having found in the first application that the taxing master erred in awarding getting-up fees, it follows that the certificate of taxation dated 10th September 2024 does not reflect the correct amount payable.
30. The certificate must therefore be amended to exclude the disallowed item before it can be adopted as a decree. As it stands, the certificate is erroneous and unenforceable.
31. This position accords with the decision in Lubulellah & Associates Advocates v N K Brothers Limited [2014] eKLR, where the Court held that a certificate of taxation can only be adopted once the amount has been settled or no reference is pending.
32. Consequently, the application for adoption and execution is premature and devoid of merit, and cannot therefore be allowed at this stage.
Final Disposition
33. In the result, the Court makes the following orders: -
i. The Client’s application dated 17th September 2024 is allowed, and the taxing master’s ruling is set aside, but only in respect of item 2 (getting-up fees).
ii. The Advocate’s application dated 18th September 2024 is dismissed for being premature.
iii. The Deputy Registrar shall amend the certificate of taxation to exclude the getting-up fees and issue an adjusted certificate accordingly.
iv. Once the adjusted certificate of taxation is issued, the Advocate shall be at liberty to file a fresh application for its recognition, subject to the statutory/legal threshold being met.
v. Each party shall bear its own costs.
34. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
27TH NOVEMBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Ms. Wasonga…………..for the Client/Applicant
N/A……………. for the Advocate/Respondent
'