REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
MISC. APPLICATION NO. E153 OF 2025
B.M MUNG'ATA & COMPANY ADVOCATES.......................APPLICANT
-VERSUS-
PAUL KIMUYU IVEI
BERNARD MBITHI IVEI
DOMINIC KALA IVEI (Sued as administrators to the estate of the late ROMAN IVEI KALA) ......................................................RESPONDENTS
RULING
1. Before me is a Reference by way of a Chamber Summons application dated 8/5/2025 by the Applicant/Advocate brought under Rule 11(1) And (2) Advocates (Remuneration) Order, 1962 (As Subsequently Amended), Schedule 6 of the Advocates (Remuneration) Order 2014, Section lA, 1B and 3A of the Civil Procedure Act and all other enabling provisions of the Law seeking orders :-
a. THAT the decision of the taxing Officer dated 24th April 2025 on the taxation of the applicant's Bill of Costs dated 30th April 2024 and any consequential orders thereon be set aside and/or vacated.
b. THAT the Advocate-Client Bill of costs dated 30/04/2024 be taxed afresh by a different constituted taxing officer in strict compliance with the Advocates Remuneration Order and the Applicable principles of taxation, fairness and equity as guided by this court.
c. THAT in the alternative this Honourable court be pleased to assess/ tax the costs lawfully payable to the Applicant vide the said Bill of costs dated 30/04/2024 on all items thereon.
d. THAT this honourable Court be pleased to order that costs of this application as well as costs in the contested bill of costs be borne by the respondent.
e. THAT this Honourable Court be pleased to make such order and or orders as it may deem just and appropriate in the circumstances.
2. The application is supported by the affidavit of Lilian N. Mutuku Advocate and based on the grounds on the face of the application as hereunder: -
a. THAT the learned taxing officer erred in principle as she arrived at a decision which is contrary to the applicable Law.
b. THAT the learned taxing officer misapprehended and misapplied the law and principles of taxation in the nature of the suit giving rise to the taxation and failed to apply correctly the principles and formula provided under Schedule 6 of the Advocates (Remuneration) Order 2014 for assessing the instruction fees.
c. THAT the taxing officer's decision to tax the instruction fees at Kshs.15,000/= on the Applicant's Bill of costs has no basis in law or facts and cannot be justified.
d. THAT the honourable taxing officer misapprehended and misapplied the law and principles of taxation of Advocate/ Client Bill of costs as she did not provide for increment of the instruction fees by 50%.
e. THAT the Taxing master erred in principle by awarding manifestly low instruction fees that is not commensurate with the work done by the Applicant.
f. THAT the taxing master erred in law and principle by failing to award getting up fees and service fees on the Applicant's Bill of costs.
g. The learned taxing Officer erred in law and fact by failing to exercise the powers and discretion given to her under the Advocates Remuneration Order properly, fairly and judiciously.
h. The Learned taxing officer erred in law and fact by making an improper determination on the paragraph of Schedule 6 of the Advocates (Remuneration) Order 2014 applicable in the assessment of the instruction fees in the taxation.
i. The Learned Taxing Officer did not apply her mind properly on the status of the Suit, the Bill of Costs and the submissions of the Applicant herein thereby arriving at an erroneous decision.
j. The learned Taxing Officer erred in law and fact by failing to give reasons on how she valued the suit to be worth Kshs. 15,000/ = as instruction fees.
k. The learned Taxing Officer misapprehended and grossly misdirected herself on the principles of law enunciated in the Authorities cited by the Applicant herein thereby arriving at an erroneous decision.
l. The learned Taxing Officer erred both in law and fact in awarding instruction fees which was inordinately low and grossly unjust given the professional work undertaken by the Applicant thus occasioning great injustice to the Applicant.
m. THAT in all circumstances of this matter, the said decision of the taxing Officer is premised on the wrong principles of law and/or is without basis in law, unreasonable and unjust.
n. THAT it is proper and just in the circumstances that this Honourable Court be pleased to allow this reference.
3. The application is opposed by the Respondent through his Replying Affidavit sworn on 27/10/2025. The Respondent states that the application lacks merit and as such it should be dismissed with costs. That in taxing the advocate-client bill of costs dated 30/4/2024 the taxing officer applied the applicable law and principles and gave a reasoned decision for the taxation therefore, the Applicant's allegation that the taxing officer erred in law and principle in taxing the said bill of costs as taxed is baseless. The taxing officer considered the work done by applicant, which was filing summons for rectification of grant, and taxed the bill accordingly. Therefore, the taxing officer's decision should not be varied and/or set aside as proposed by the applicant.
4. The Respondents also filed a Preliminary Objection dated 3/6/2025 seeks to strike out the application on the basis that the said application is filed out of time and without the leave of the court contrary to the provisions of Rule 11 (1), (2) and (4) of the Advocates (Remuneration) Order which Mr. Mutava counsel for the Applicant informed court on 28/10/2025 that it had been dismissed.
5. I have perused the court record and have not seen when the said Preliminary Objection was dismissed as alleged.
6. I have carefully considered the Preliminary Objection and the application in its entirety including the grounds, the affidavits, and the provisions of Rule 11 (1), (2) and (4) of the Advocates (Remuneration) Order I will therefore determine the Preliminary Objection and the instant application together and the two issues for my consideration are:
i. Whether the Preliminary Objection ought to be upheld.
ii. Whether the decision of the taxing master delivered on 24/4/2025 should be set aside and reviewed.
i. Whether the Preliminary Objection ought to be upheld.
7. The ruling by the taxing officer was on 24/4/2025. The application herein is dated 8/5/2025. The time provided for filing an objection is 14 days. The deadline for filing the objection was 8/5/2025. The summons though dated 8/5/2025 was received in court on 09/5/2025. It was therefore late by one day.
8. The Applicant is expected to file an objection with the taxing officer as required by Rule 11(1) of the Advocates Remuneration Order. Filing an objection is the first step. If the reasons given by the taxing officer do not satisfy the Applicant, then, the next option is to file a reference.
9. This court can, under Rule 11(4) of the Advocates Remuneration Order extend time and grant leave to the Applicant to lodge an objection against the decision of the taxing officer. This is because the subrule provides as follows:-
(4) The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) for the taking of any step…”
10. The question that follows is :-
“Should this court suo motto extend time and or deem the application properly on record despite the delay of one day in filing the same?”
11. It is my finding that the delay of one day in filing the application was not inordinate in all the circumstances of this case. Accordingly, the Preliminary Objection is overruled.
i. Whether the decision of the taxing master delivered on 24/4/2025 should be set aside and reviewed.
12. The taxing officer in the ruling dated 24th April 2025 stated that having considered the authorities she cited, and having regard that the application for rectification of grant was unopposed, no difficulties or complexities having been demonstrated, she found that this is not a proper case for increasing the instruction fees by a half consequently the said item was taxed off. Accordingly, the Bill of Costs dated 30th April 2024 was taxed at Kshs.30,275/=.
13. From the application, the Advocate Applicant claims that the taxing officer misapprehended and misplaced the law and principles of taxation in the nature of the suit giving rise to the taxation and failed to apply correctly the principles and formula provided for under Schedule 6 of the Advocates (Remuneration) Order 2014 for assessing the instruction fees. The Applicant faults the taxing officer for failure to provide for an increment on the instruction fees by 50% and for failing to give reasons on how she valued the suit to be worth Kshs.15,000/= as instruction fees.
14. I have carefully considered the ruling of the taxing officer dated 24th April 2025. The Applicant received instructions for filing an application for rectification of grant and the taxing officer taxed the instruction fees at Kshs.15,000/= since the application for rectification was not opposed.
15. On declining to increase instruction fees by 50%, the taxing officer was guided by the case of Nyangito & Co. Advocates v Doinyo Lessos Creameries Ltd [2014] eKLR, where Odunga, J had this to say:-
".... (4) it is within the discretion of the Taxing Officer to increase or reduce the instruction fees and the amount of the increase or reduction is discretionary; (5) the Taxing Officer must set out the basic fee before venturing to consider whether to increase or reduce it; (6) the full instruction fees to defend a suit are earned the moment a defence has been filed and the subsequent progress of the matter is irrelevant to that item of fees; (7) the mere fact that the defendant does research before filing a defence and then puts a defence informed of such research is not necessarily indicative of the complexity of the matter as it may well be indicative of the advocate's unfamiliarity with basic principles of law and such unfamiliarity should not be turned into an advantage against the adversary. These principles were stated in the case of First American Bank of Kenya vs. Shah and Others [2002] 1 EA 64”
16. The taxing officer also relied on the case of Mumias Sugar Company Ltd vs Professor Tom Ojienda & Associates (2019) eKLR Justice Fred Ochieng Held that:-
"... However, I feel obliged to point out that the taxing officer must bear in mind the fact that this is an Advocate/Client Bill of Costs. There has not been any Party and Party Bill of Costs taxed in the Parent case. If there had been a taxation of the Party and Party Bill of Costs, the taxing officer could have had the option of awarding an increase of the Party and Party Costs by one-half. There is no justification whatsoever, in my considered opinion, for taxing an Advocate/Client Bill of Costs, and then increasing it by 50%. If the taxing officer has good reason for increasing the Instruction Fee, he or she may do so during the process of taxing the Bill. If the reason for increasing the Instruction Fee was; "..... the nature and the importance of the cause or the matter; the interest of the parties; the general conduct of the proceedings, or any direction by the trial Judge or any other relevant factors,...." the taxing officer would have to specifically indicate the factors which he or she relied upon”
17. Having regard to the above authorities and the fact that the application for rectification of grant was unopposed, no difficulties or complexities were demonstrated, the taxing officer found that this is not a proper case for increasing the instruction fees by half consequently the said item was taxed off.
18. This court has established and agree with the taxing officer that the Applicant only received instructions to file an application to rectify the grant to correct the name of a beneficiary. Such an application is simple, with no complexities and again, it was unopposed.
19. In Joreth Ltd v Kigano & Associates [2002] eKLR, where the Court of Appeal unequivocally held:
"The value of the subject matter 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, "
20. That a court’s discretion was commented in the case of Peter Muthoka & Joseph Mumo Kivai v Ochieng, Onyango, Kibet & Ohaga Advocates [2019] KECA 597 (KLR), the Court of Appeal emphasized:
"The taxing officer's discretion is not a wild and unaccountable discretion but one rooted in the framework provided by law, 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 misjustice, the decision, though discretionary, may properly be interfered with, "
21. The Court of Appeal in Mbogo v Shah [1968] EA 93, held:
"The High Court will interfere with a taxing master's decision if 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 injustice.”
22. On the foregoing, I find that the taxing officer took into account the correct principles in taxing the Bill of Costs and therefore rightly exercised her discretion in taxing the instruction fees in this matter and I will decline to interfere with her finding on this item.
23. Accordingly, the Chamber Summons dated 8th May 2025 lacks merit and is dismissed.
24. Each party to bear their own costs of the application.
25. It is so ordered.
JUDGEMENT WRITTEN, SIGNED & DATED AT MACHAKOS THIS 24TH MARCH 2026
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 24TH MARCH 2026
In the presence of :
Muema h/b for Mutuku for Applicant
Ms Mwau for Respondent
Milly-Court Assistant
IN THE HIGH COURT OF KENYA AT MACHAKOS
MISC. APPLICATION NO. E153 OF 2025
B.M MUNG'ATA & COMPANY ADVOCATES.......................APPLICANT
-VERSUS-
PAUL KIMUYU IVEI
BERNARD MBITHI IVEI
DOMINIC KALA IVEI (Sued as administrators to the estate of the late ROMAN IVEI KALA) ......................................................RESPONDENTS
RULING
1. Before me is a Reference by way of a Chamber Summons application dated 8/5/2025 by the Applicant/Advocate brought under Rule 11(1) And (2) Advocates (Remuneration) Order, 1962 (As Subsequently Amended), Schedule 6 of the Advocates (Remuneration) Order 2014, Section lA, 1B and 3A of the Civil Procedure Act and all other enabling provisions of the Law seeking orders :-
a. THAT the decision of the taxing Officer dated 24th April 2025 on the taxation of the applicant's Bill of Costs dated 30th April 2024 and any consequential orders thereon be set aside and/or vacated.
b. THAT the Advocate-Client Bill of costs dated 30/04/2024 be taxed afresh by a different constituted taxing officer in strict compliance with the Advocates Remuneration Order and the Applicable principles of taxation, fairness and equity as guided by this court.
c. THAT in the alternative this Honourable court be pleased to assess/ tax the costs lawfully payable to the Applicant vide the said Bill of costs dated 30/04/2024 on all items thereon.
d. THAT this honourable Court be pleased to order that costs of this application as well as costs in the contested bill of costs be borne by the respondent.
e. THAT this Honourable Court be pleased to make such order and or orders as it may deem just and appropriate in the circumstances.
2. The application is supported by the affidavit of Lilian N. Mutuku Advocate and based on the grounds on the face of the application as hereunder: -
a. THAT the learned taxing officer erred in principle as she arrived at a decision which is contrary to the applicable Law.
b. THAT the learned taxing officer misapprehended and misapplied the law and principles of taxation in the nature of the suit giving rise to the taxation and failed to apply correctly the principles and formula provided under Schedule 6 of the Advocates (Remuneration) Order 2014 for assessing the instruction fees.
c. THAT the taxing officer's decision to tax the instruction fees at Kshs.15,000/= on the Applicant's Bill of costs has no basis in law or facts and cannot be justified.
d. THAT the honourable taxing officer misapprehended and misapplied the law and principles of taxation of Advocate/ Client Bill of costs as she did not provide for increment of the instruction fees by 50%.
e. THAT the Taxing master erred in principle by awarding manifestly low instruction fees that is not commensurate with the work done by the Applicant.
f. THAT the taxing master erred in law and principle by failing to award getting up fees and service fees on the Applicant's Bill of costs.
g. The learned taxing Officer erred in law and fact by failing to exercise the powers and discretion given to her under the Advocates Remuneration Order properly, fairly and judiciously.
h. The Learned taxing officer erred in law and fact by making an improper determination on the paragraph of Schedule 6 of the Advocates (Remuneration) Order 2014 applicable in the assessment of the instruction fees in the taxation.
i. The Learned Taxing Officer did not apply her mind properly on the status of the Suit, the Bill of Costs and the submissions of the Applicant herein thereby arriving at an erroneous decision.
j. The learned Taxing Officer erred in law and fact by failing to give reasons on how she valued the suit to be worth Kshs. 15,000/ = as instruction fees.
k. The learned Taxing Officer misapprehended and grossly misdirected herself on the principles of law enunciated in the Authorities cited by the Applicant herein thereby arriving at an erroneous decision.
l. The learned Taxing Officer erred both in law and fact in awarding instruction fees which was inordinately low and grossly unjust given the professional work undertaken by the Applicant thus occasioning great injustice to the Applicant.
m. THAT in all circumstances of this matter, the said decision of the taxing Officer is premised on the wrong principles of law and/or is without basis in law, unreasonable and unjust.
n. THAT it is proper and just in the circumstances that this Honourable Court be pleased to allow this reference.
3. The application is opposed by the Respondent through his Replying Affidavit sworn on 27/10/2025. The Respondent states that the application lacks merit and as such it should be dismissed with costs. That in taxing the advocate-client bill of costs dated 30/4/2024 the taxing officer applied the applicable law and principles and gave a reasoned decision for the taxation therefore, the Applicant's allegation that the taxing officer erred in law and principle in taxing the said bill of costs as taxed is baseless. The taxing officer considered the work done by applicant, which was filing summons for rectification of grant, and taxed the bill accordingly. Therefore, the taxing officer's decision should not be varied and/or set aside as proposed by the applicant.
4. The Respondents also filed a Preliminary Objection dated 3/6/2025 seeks to strike out the application on the basis that the said application is filed out of time and without the leave of the court contrary to the provisions of Rule 11 (1), (2) and (4) of the Advocates (Remuneration) Order which Mr. Mutava counsel for the Applicant informed court on 28/10/2025 that it had been dismissed.
5. I have perused the court record and have not seen when the said Preliminary Objection was dismissed as alleged.
6. I have carefully considered the Preliminary Objection and the application in its entirety including the grounds, the affidavits, and the provisions of Rule 11 (1), (2) and (4) of the Advocates (Remuneration) Order I will therefore determine the Preliminary Objection and the instant application together and the two issues for my consideration are:
i. Whether the Preliminary Objection ought to be upheld.
ii. Whether the decision of the taxing master delivered on 24/4/2025 should be set aside and reviewed.
i. Whether the Preliminary Objection ought to be upheld.
7. The ruling by the taxing officer was on 24/4/2025. The application herein is dated 8/5/2025. The time provided for filing an objection is 14 days. The deadline for filing the objection was 8/5/2025. The summons though dated 8/5/2025 was received in court on 09/5/2025. It was therefore late by one day.
8. The Applicant is expected to file an objection with the taxing officer as required by Rule 11(1) of the Advocates Remuneration Order. Filing an objection is the first step. If the reasons given by the taxing officer do not satisfy the Applicant, then, the next option is to file a reference.
9. This court can, under Rule 11(4) of the Advocates Remuneration Order extend time and grant leave to the Applicant to lodge an objection against the decision of the taxing officer. This is because the subrule provides as follows:-
(4) The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) for the taking of any step…”
10. The question that follows is :-
“Should this court suo motto extend time and or deem the application properly on record despite the delay of one day in filing the same?”
11. It is my finding that the delay of one day in filing the application was not inordinate in all the circumstances of this case. Accordingly, the Preliminary Objection is overruled.
i. Whether the decision of the taxing master delivered on 24/4/2025 should be set aside and reviewed.
12. The taxing officer in the ruling dated 24th April 2025 stated that having considered the authorities she cited, and having regard that the application for rectification of grant was unopposed, no difficulties or complexities having been demonstrated, she found that this is not a proper case for increasing the instruction fees by a half consequently the said item was taxed off. Accordingly, the Bill of Costs dated 30th April 2024 was taxed at Kshs.30,275/=.
13. From the application, the Advocate Applicant claims that the taxing officer misapprehended and misplaced the law and principles of taxation in the nature of the suit giving rise to the taxation and failed to apply correctly the principles and formula provided for under Schedule 6 of the Advocates (Remuneration) Order 2014 for assessing the instruction fees. The Applicant faults the taxing officer for failure to provide for an increment on the instruction fees by 50% and for failing to give reasons on how she valued the suit to be worth Kshs.15,000/= as instruction fees.
14. I have carefully considered the ruling of the taxing officer dated 24th April 2025. The Applicant received instructions for filing an application for rectification of grant and the taxing officer taxed the instruction fees at Kshs.15,000/= since the application for rectification was not opposed.
15. On declining to increase instruction fees by 50%, the taxing officer was guided by the case of Nyangito & Co. Advocates v Doinyo Lessos Creameries Ltd [2014] eKLR, where Odunga, J had this to say:-
".... (4) it is within the discretion of the Taxing Officer to increase or reduce the instruction fees and the amount of the increase or reduction is discretionary; (5) the Taxing Officer must set out the basic fee before venturing to consider whether to increase or reduce it; (6) the full instruction fees to defend a suit are earned the moment a defence has been filed and the subsequent progress of the matter is irrelevant to that item of fees; (7) the mere fact that the defendant does research before filing a defence and then puts a defence informed of such research is not necessarily indicative of the complexity of the matter as it may well be indicative of the advocate's unfamiliarity with basic principles of law and such unfamiliarity should not be turned into an advantage against the adversary. These principles were stated in the case of First American Bank of Kenya vs. Shah and Others [2002] 1 EA 64”
16. The taxing officer also relied on the case of Mumias Sugar Company Ltd vs Professor Tom Ojienda & Associates (2019) eKLR Justice Fred Ochieng Held that:-
"... However, I feel obliged to point out that the taxing officer must bear in mind the fact that this is an Advocate/Client Bill of Costs. There has not been any Party and Party Bill of Costs taxed in the Parent case. If there had been a taxation of the Party and Party Bill of Costs, the taxing officer could have had the option of awarding an increase of the Party and Party Costs by one-half. There is no justification whatsoever, in my considered opinion, for taxing an Advocate/Client Bill of Costs, and then increasing it by 50%. If the taxing officer has good reason for increasing the Instruction Fee, he or she may do so during the process of taxing the Bill. If the reason for increasing the Instruction Fee was; "..... the nature and the importance of the cause or the matter; the interest of the parties; the general conduct of the proceedings, or any direction by the trial Judge or any other relevant factors,...." the taxing officer would have to specifically indicate the factors which he or she relied upon”
17. Having regard to the above authorities and the fact that the application for rectification of grant was unopposed, no difficulties or complexities were demonstrated, the taxing officer found that this is not a proper case for increasing the instruction fees by half consequently the said item was taxed off.
18. This court has established and agree with the taxing officer that the Applicant only received instructions to file an application to rectify the grant to correct the name of a beneficiary. Such an application is simple, with no complexities and again, it was unopposed.
19. In Joreth Ltd v Kigano & Associates [2002] eKLR, where the Court of Appeal unequivocally held:
"The value of the subject matter 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, "
20. That a court’s discretion was commented in the case of Peter Muthoka & Joseph Mumo Kivai v Ochieng, Onyango, Kibet & Ohaga Advocates [2019] KECA 597 (KLR), the Court of Appeal emphasized:
"The taxing officer's discretion is not a wild and unaccountable discretion but one rooted in the framework provided by law, 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 misjustice, the decision, though discretionary, may properly be interfered with, "
21. The Court of Appeal in Mbogo v Shah [1968] EA 93, held:
"The High Court will interfere with a taxing master's decision if 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 injustice.”
22. On the foregoing, I find that the taxing officer took into account the correct principles in taxing the Bill of Costs and therefore rightly exercised her discretion in taxing the instruction fees in this matter and I will decline to interfere with her finding on this item.
23. Accordingly, the Chamber Summons dated 8th May 2025 lacks merit and is dismissed.
24. Each party to bear their own costs of the application.
25. It is so ordered.
JUDGEMENT WRITTEN, SIGNED & DATED AT MACHAKOS THIS 24TH MARCH 2026
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 24TH MARCH 2026
In the presence of :
Muema h/b for Mutuku for Applicant
Ms Mwau for Respondent
Milly-Court Assistant