1. The Applicant’s chamber summons dated 10th October, 2024 is expressed to be brought under Order 49 Rule 7(3) of the Civil Procedure Rules, Section 11 of the Advocates Act, and all other enabling provisions of the law and seeks the following orders:
a. That this Honourable Court be pleased to review and set aside the ruling by the Honourable Deputy Registrar delivered on 3rd October, 2024, assessing the instruction fee at Ksh.150,000/-.
b. That this Honourable Court be pleased to reassess and award a higher instruction fee and its getting up fees commensurate with the complexity and extensive professional input required for handling the matter in HCСС Misc. Application No. E192 of 2024.
c. That the costs of this application be provided for.
2. The grounds upon which the application is premised are that the matter involves significant complexity and has been ongoing since the year 2017, with a subject matter valued at approximately Ksh.278,618,704/- necessitating detailed financial reconciliation and legal intervention.
3. The Applicant further proffers the ground that the case required the engagement of external experts, including accountants, to conduct advanced financial scrutiny, which resulted in substantial adjustments to the interest amounts claimed and that multiple procedural engagements and numerous applications over the years demonstrate the considerable resources and multidisciplinary efforts expended by the Applicant in handling the matter.
4. The Applicant states the further ground that meetings seeking reconciliation were frequently held at five-star hotels, as evidenced by the annexed list of documents.
5. The Applicant adds that Respondent presented withholding of a higher amount, resulting in a default demand of approximately Ksh.6,000,000/- due to the Kenya Revenue Authority, which was allegedly paid though not received by the Applicant and that taxing the bill at a low amount would inhibit the Applicant from fulfilling obligations triggered by the Respondent. The Applicant states that the assessed instruction fee does not reflect the professional effort, expertise and resources invested, and therefore does not align with the complexity of the matter.
6. The reference is supported by the affidavit of Clifford Otieno Obiero, Advocate, sworn on 10th October, 2024.
7. In his supporting affidavit, Counsel deposes that on 3rd October, 2024, the Honourable Taxing Master delivered a ruling assessing the instruction fee due to the Applicant, who had acted for the Respondent at Ksh.150,000/- in Misc. Application No. E192 of 2024.
8. Counsel states that the matter had been ongoing since the year 2017, involving complex financial reconciliation and legal intricacies, with the subject matter valued at approximately Ksh.278,618,704/- at the time instructions were received. He highlights that the matter required significant professional input, including reducing an exaggerated interest amount by Ksh.41,000,000/- through engagement with external experts such as accountants.
9. Counsel further notes that he and his team examined 95 associated files, demonstrating the multidisciplinary effort and resources invested over the course of the proceedings. He emphasizes that numerous procedural applications and court orders underscore the comprehensive case management and continuous engagement that was required from his law firm.
10. Counsel asserts that the assessed instruction fee does not accurately reflect the professional effort, expertise and resources expended, and therefore warrants reconsideration for a higher fee. He also notes that meetings for reconciliation were often held at five-star hotels, as evidenced by annexed communications.
11. Counsel points out that the Respondent presented withholding of a higher amount, resulting in a default demand of approximately Ksh.6,000,000/- due to the Kenya Revenue Authority, which was allegedly paid though not received, further complicating the matter.
12. In conclusion, Counsel requests this Court, by way of reference, to review and reassess the awarded instruction fee to align with the complexity, professional input and resources characteristic of this matter.
13. The application is opposed and to that end the Respondents filed a replying affidavit sworn on 6th May, 2025 by Mr. Otieno Aluoka, the County Attorney, Kisumu County.
14. In his replying affidavit, the County Attorney states on oath that the Applicant’s application seeking reassessment of the Taxing Master’s ruling dated 3rd October, 2024 on instruction fees as taxed is misinformed, misplaced, and should be dismissed with costs. He deposes that it is procedurally irregular and unprocedural to require the High Court to perform duties specifically assigned to the Deputy Registrar in taxation matters.
15. The County Attorney notes that the ruling in question emanated from the Advocates/Clients bill of costs dated 24th April 2024, for work rendered in Kisumu Misc. No. 54 of 2017 – Republic v County Government of Kisumu (ex parte Ken Pundo). He points out that the Applicant filed a notice of appointment on 20th August 2023, seven years after the matter had been filed, defended and judgment delivered.
16. The learned County Attorney states that during the seven-year period, other Advocates were on record for the County Government of Kisumu, and judgement was delivered through a consent order, which compromised the suit. He states that the Applicant joined the proceedings only during the execution stage, long after judgment had been issued.
17. The County Attorney states that the Applicant placed undue reliance on the value of the suit’s subject matter, approximated at Ksh.250,000,000/- which is not determinative in Kisumu Misc. No. 54 of 2017, as the main issue was the enforcement of a debt owed by a public entity. He explains that the Taxing Master exercised discretion in accordance with Schedule 6 j(ii) of the Advocates Remuneration Order, taking all circumstances into account and properly awarded the Applicant instruction fees of Ksh.150,000/-.
18. The learned County Attorney observes that constitutional petitions and prerogative orders are treated differently, with instruction fees classed separately, justifying the specific amount awarded. He also emphasizes that the Applicant never filed any document in court, which reflects on the actual work performed and the complexity of the matter handled by the Advocate.
19. On the issue of withholding tax, he states that the amount withheld is not exaggerated but results from multiple invoices and fee notes raised by the Applicant’s firm, in the course of handling various matters for the County Government of Kisumu.
20. In conclusion, he contends that the Applicant’s application dated and filed on 10th October, 2024 should be dismissed with costs.
21. The application proceeded by way of brief oral submissions whereby the parties restated the respective positions in their affidavits. In support of their position, the Respondents placed reliance on the authorities of Republic v Minister for Agriculture & 2 others ex-parte Samuel W’Njuguna & 6 others [2006] eKLR and Brampton Investment Limited v Attorney General & 2 others [2013] eKLR.
22. Having considered the application, the response and the record in its entirety, I proceed to set out the issues for determination as follows:
a. Whether the Honourable Court has jurisdiction and the Applicant followed proper procedure in seeking review and reassessment of the instruction fee awarded by the Deputy Registrar on 3rd October, 2024.
b. Whether the instruction fee of Ksh.150,000/- awarded by the Deputy Registrar properly reflects the professional effort, expertise and resources required to handle HC Misc. Application No. E192 of 2024, including the exercise of discretion under the Advocates Remuneration Order.
c. Whether, in law, the Applicant is entitled to a higher instruction fee and getting-up fees, and whether the application for reassessment should be allowed or dismissed with costs.
23. The first issue for determination is whether this Honourable Court has jurisdiction and whether the Applicant complied with the proper procedure in seeking to review and reassess the ruling of the Deputy Registrar delivered on 3rd October, 2024 assessing instruction fees at Ksh.150,000/-.
24. It is settled that a ruling of the Deputy Registrar on instruction fees is subject to supervision by this Court under the Advocates (Remuneration) Order and the Civil Procedure Rules.
25. An advocate who is dissatisfied with a Taxing Master’s taxation or assessment of advocate-and-client costs may challenge the decision under Order 49 Rule 7 of the Civil Procedure Rules. This provision allows any party aggrieved by a decision of the Registrar or Deputy Registrar, including taxation of costs, to appeal to a Judge in Chambers.
26. While the Advocates Act provides the framework for charging advocate-and-client fees, disputes over their reasonableness or proper calculation are resolved through the court taxation process. Once challenged through a reference by way of chamber summons, the Judge reviews the Deputy Registrar’s decision and has the authority to confirm, reduce, or revise the taxed costs, ensuring that the taxation aligns with legal standards and principles of fairness.
27. In Republic v Minister for Agriculture & 2 others ex parte Samuel W’Njuguna & 6 others [2006] eKLR, the High Court emphasized the need for reasoned supervision where a Taxing Master’s decision raises questions of law or irregularity in procedure. Although assessment and/or taxation of costs is primarily the function of the Taxing Master, this Court will intervene where the taxing process is undermined by procedural unfairness or misapplication of the law.
28. In the present application, the Applicant has demonstrated that the application was brought under clear statutory and procedural bases (Order 49 Rule 7(3) of the Civil Procedure Rules and Section 11 of the Advocates Act) and that there exists an arguable basis for judicial supervision of the taxation exercise. The decision impugned being a ruling of the Deputy Registrar in taxation, this Court is satisfied that jurisdiction properly lies with it to entertain the application.
29. The second issue is whether the instruction fee of Ksh.150,000/- awarded by the Deputy Registrar properly reflects the professional effort, expertise and resources required to handle the matter in HC Misc. Application No. E192 of 2024, and whether the Deputy Registrar properly exercised her discretion under the Advocates (Remuneration) Order.
30. The Advocates (Remuneration) Order provides guidance on assessment of instruction fees. Schedule 6 j(ii) permits the Taxing Master to allow a reasonable fee to Counsel for instruction, taking into account all circumstances, including complexity. However, “reasonable” does not mean an amount claimed by the Advocate, but one that is fair in light of the work done, the nature of the matter and prevailing practice.
31. In the case of Brampton Investment Limited v Attorney General & 2 others [2013] eKLR, the High Court refused to interfere with the Deputy Registrar’s assessment of instruction fees where the Taxing Master had considered all relevant circumstances and exercised discretion within lawful bounds. In that case, the Court emphasized that mere dissatisfaction with the level of fees assessed by the Taxing Master does not warrant interference unless there is clear misdirection or error of law.
32. The Respondent has shown, and it is accepted, that the Deputy Registrar applied Schedule 6 j(ii) on the available material and arrived at Ksh.150,000/– as instruction fee. Although the Applicant contends that the matter was complex and involved multidisciplinary work, the Deputy Registrar’s discretion is broad and qualitative and the Applicant has not established that the ruling was so unreasonable or disproportionate as to constitute an error of law.
33. Further, it is noted that the Applicant joined the matter long after most substantive proceedings had concluded, and no significant court filings or interlocutory activities by the Applicant are on record to demonstrate extraordinary professional input, a factor which the Taxing Master was entitled to consider.
34. On this basis, the instruction fee assessed by the Deputy Registrar is not so disproportionate or unreasonable as to warrant intervention, and the discretion was therefore properly exercised.
35. The third issue is whether, as a matter of law, the Applicant is entitled to a higher instruction fee and getting up fees, and whether the application for reassessment should be allowed or dismissed with costs.
36. The law is trite that an award of costs is discretionary and a court will only vary an assessment where there is a misdirection in law, breach of principle or manifest injustice. In ex parte W’Njuguna & 6 others, the Court observed that judicial supervision of Taxing Officers is limited to circumstances where the Taxing Master has acted on wrong principle, ignored material considerations or fettered discretion.
37. In the present case, the Applicant has not demonstrated that the Deputy Registrar acted on a wrong principle or ignored material considerations. To the contrary, the Respondent has established that the Taxing Master considered the relevant provisions of the Advocates (Remuneration) Order and exercised her discretion within permissible bounds.
38. The Applicant’s contention that the matter’s complexity, meetings in five star hotels, engagement of experts and alleged KRA withholding justify a higher fee, does not, in law, translate to an automatic right to enhanced instruction fees. The mere invocation of complexity without demonstrable linkage to extraordinary work is insufficient to disturb an assessment properly made.
39. Accordingly, the third issue is determined in favour of the Respondent.
40. Being of the foregoing persuasion, I will not interfere with the Taxing Master’s findings on instruction fees. The reference therefore fails and is dismissed.
41. Notwithstanding the dismissal of the application, the Court makes a reservation as to costs, noting that the parties were engaged in a fiduciary relationship. In view of this relationship, the Court considers orders that each party bears its own costs of the reference.
42. This file is hereby closed.
DELIVERED (virtually), DATED & SIGNED this 12th day of March, 2026.
JOE M. OMIDO
JUDGE
FOR APPLICANT: Ms. Abuya for Mr. Obiero.
FOR RESPONDENT: No appearance.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
a. That this Honourable Court be pleased to review and set aside the ruling by the Honourable Deputy Registrar delivered on 3rd October, 2024, assessing the instruction fee at Ksh.150,000/-.
b. That this Honourable Court be pleased to reassess and award a higher instruction fee and its getting up fees commensurate with the complexity and extensive professional input required for handling the matter in HCСС Misc. Application No. E192 of 2024.
c. That the costs of this application be provided for.
2. The grounds upon which the application is premised are that the matter involves significant complexity and has been ongoing since the year 2017, with a subject matter valued at approximately Ksh.278,618,704/- necessitating detailed financial reconciliation and legal intervention.
3. The Applicant further proffers the ground that the case required the engagement of external experts, including accountants, to conduct advanced financial scrutiny, which resulted in substantial adjustments to the interest amounts claimed and that multiple procedural engagements and numerous applications over the years demonstrate the considerable resources and multidisciplinary efforts expended by the Applicant in handling the matter.
4. The Applicant states the further ground that meetings seeking reconciliation were frequently held at five-star hotels, as evidenced by the annexed list of documents.
5. The Applicant adds that Respondent presented withholding of a higher amount, resulting in a default demand of approximately Ksh.6,000,000/- due to the Kenya Revenue Authority, which was allegedly paid though not received by the Applicant and that taxing the bill at a low amount would inhibit the Applicant from fulfilling obligations triggered by the Respondent. The Applicant states that the assessed instruction fee does not reflect the professional effort, expertise and resources invested, and therefore does not align with the complexity of the matter.
6. The reference is supported by the affidavit of Clifford Otieno Obiero, Advocate, sworn on 10th October, 2024.
7. In his supporting affidavit, Counsel deposes that on 3rd October, 2024, the Honourable Taxing Master delivered a ruling assessing the instruction fee due to the Applicant, who had acted for the Respondent at Ksh.150,000/- in Misc. Application No. E192 of 2024.
8. Counsel states that the matter had been ongoing since the year 2017, involving complex financial reconciliation and legal intricacies, with the subject matter valued at approximately Ksh.278,618,704/- at the time instructions were received. He highlights that the matter required significant professional input, including reducing an exaggerated interest amount by Ksh.41,000,000/- through engagement with external experts such as accountants.
9. Counsel further notes that he and his team examined 95 associated files, demonstrating the multidisciplinary effort and resources invested over the course of the proceedings. He emphasizes that numerous procedural applications and court orders underscore the comprehensive case management and continuous engagement that was required from his law firm.
10. Counsel asserts that the assessed instruction fee does not accurately reflect the professional effort, expertise and resources expended, and therefore warrants reconsideration for a higher fee. He also notes that meetings for reconciliation were often held at five-star hotels, as evidenced by annexed communications.
11. Counsel points out that the Respondent presented withholding of a higher amount, resulting in a default demand of approximately Ksh.6,000,000/- due to the Kenya Revenue Authority, which was allegedly paid though not received, further complicating the matter.
12. In conclusion, Counsel requests this Court, by way of reference, to review and reassess the awarded instruction fee to align with the complexity, professional input and resources characteristic of this matter.
13. The application is opposed and to that end the Respondents filed a replying affidavit sworn on 6th May, 2025 by Mr. Otieno Aluoka, the County Attorney, Kisumu County.
14. In his replying affidavit, the County Attorney states on oath that the Applicant’s application seeking reassessment of the Taxing Master’s ruling dated 3rd October, 2024 on instruction fees as taxed is misinformed, misplaced, and should be dismissed with costs. He deposes that it is procedurally irregular and unprocedural to require the High Court to perform duties specifically assigned to the Deputy Registrar in taxation matters.
15. The County Attorney notes that the ruling in question emanated from the Advocates/Clients bill of costs dated 24th April 2024, for work rendered in Kisumu Misc. No. 54 of 2017 – Republic v County Government of Kisumu (ex parte Ken Pundo). He points out that the Applicant filed a notice of appointment on 20th August 2023, seven years after the matter had been filed, defended and judgment delivered.
16. The learned County Attorney states that during the seven-year period, other Advocates were on record for the County Government of Kisumu, and judgement was delivered through a consent order, which compromised the suit. He states that the Applicant joined the proceedings only during the execution stage, long after judgment had been issued.
17. The County Attorney states that the Applicant placed undue reliance on the value of the suit’s subject matter, approximated at Ksh.250,000,000/- which is not determinative in Kisumu Misc. No. 54 of 2017, as the main issue was the enforcement of a debt owed by a public entity. He explains that the Taxing Master exercised discretion in accordance with Schedule 6 j(ii) of the Advocates Remuneration Order, taking all circumstances into account and properly awarded the Applicant instruction fees of Ksh.150,000/-.
18. The learned County Attorney observes that constitutional petitions and prerogative orders are treated differently, with instruction fees classed separately, justifying the specific amount awarded. He also emphasizes that the Applicant never filed any document in court, which reflects on the actual work performed and the complexity of the matter handled by the Advocate.
19. On the issue of withholding tax, he states that the amount withheld is not exaggerated but results from multiple invoices and fee notes raised by the Applicant’s firm, in the course of handling various matters for the County Government of Kisumu.
20. In conclusion, he contends that the Applicant’s application dated and filed on 10th October, 2024 should be dismissed with costs.
21. The application proceeded by way of brief oral submissions whereby the parties restated the respective positions in their affidavits. In support of their position, the Respondents placed reliance on the authorities of Republic v Minister for Agriculture & 2 others ex-parte Samuel W’Njuguna & 6 others [2006] eKLR and Brampton Investment Limited v Attorney General & 2 others [2013] eKLR.
22. Having considered the application, the response and the record in its entirety, I proceed to set out the issues for determination as follows:
a. Whether the Honourable Court has jurisdiction and the Applicant followed proper procedure in seeking review and reassessment of the instruction fee awarded by the Deputy Registrar on 3rd October, 2024.
b. Whether the instruction fee of Ksh.150,000/- awarded by the Deputy Registrar properly reflects the professional effort, expertise and resources required to handle HC Misc. Application No. E192 of 2024, including the exercise of discretion under the Advocates Remuneration Order.
c. Whether, in law, the Applicant is entitled to a higher instruction fee and getting-up fees, and whether the application for reassessment should be allowed or dismissed with costs.
23. The first issue for determination is whether this Honourable Court has jurisdiction and whether the Applicant complied with the proper procedure in seeking to review and reassess the ruling of the Deputy Registrar delivered on 3rd October, 2024 assessing instruction fees at Ksh.150,000/-.
24. It is settled that a ruling of the Deputy Registrar on instruction fees is subject to supervision by this Court under the Advocates (Remuneration) Order and the Civil Procedure Rules.
25. An advocate who is dissatisfied with a Taxing Master’s taxation or assessment of advocate-and-client costs may challenge the decision under Order 49 Rule 7 of the Civil Procedure Rules. This provision allows any party aggrieved by a decision of the Registrar or Deputy Registrar, including taxation of costs, to appeal to a Judge in Chambers.
26. While the Advocates Act provides the framework for charging advocate-and-client fees, disputes over their reasonableness or proper calculation are resolved through the court taxation process. Once challenged through a reference by way of chamber summons, the Judge reviews the Deputy Registrar’s decision and has the authority to confirm, reduce, or revise the taxed costs, ensuring that the taxation aligns with legal standards and principles of fairness.
27. In Republic v Minister for Agriculture & 2 others ex parte Samuel W’Njuguna & 6 others [2006] eKLR, the High Court emphasized the need for reasoned supervision where a Taxing Master’s decision raises questions of law or irregularity in procedure. Although assessment and/or taxation of costs is primarily the function of the Taxing Master, this Court will intervene where the taxing process is undermined by procedural unfairness or misapplication of the law.
28. In the present application, the Applicant has demonstrated that the application was brought under clear statutory and procedural bases (Order 49 Rule 7(3) of the Civil Procedure Rules and Section 11 of the Advocates Act) and that there exists an arguable basis for judicial supervision of the taxation exercise. The decision impugned being a ruling of the Deputy Registrar in taxation, this Court is satisfied that jurisdiction properly lies with it to entertain the application.
29. The second issue is whether the instruction fee of Ksh.150,000/- awarded by the Deputy Registrar properly reflects the professional effort, expertise and resources required to handle the matter in HC Misc. Application No. E192 of 2024, and whether the Deputy Registrar properly exercised her discretion under the Advocates (Remuneration) Order.
30. The Advocates (Remuneration) Order provides guidance on assessment of instruction fees. Schedule 6 j(ii) permits the Taxing Master to allow a reasonable fee to Counsel for instruction, taking into account all circumstances, including complexity. However, “reasonable” does not mean an amount claimed by the Advocate, but one that is fair in light of the work done, the nature of the matter and prevailing practice.
31. In the case of Brampton Investment Limited v Attorney General & 2 others [2013] eKLR, the High Court refused to interfere with the Deputy Registrar’s assessment of instruction fees where the Taxing Master had considered all relevant circumstances and exercised discretion within lawful bounds. In that case, the Court emphasized that mere dissatisfaction with the level of fees assessed by the Taxing Master does not warrant interference unless there is clear misdirection or error of law.
32. The Respondent has shown, and it is accepted, that the Deputy Registrar applied Schedule 6 j(ii) on the available material and arrived at Ksh.150,000/– as instruction fee. Although the Applicant contends that the matter was complex and involved multidisciplinary work, the Deputy Registrar’s discretion is broad and qualitative and the Applicant has not established that the ruling was so unreasonable or disproportionate as to constitute an error of law.
33. Further, it is noted that the Applicant joined the matter long after most substantive proceedings had concluded, and no significant court filings or interlocutory activities by the Applicant are on record to demonstrate extraordinary professional input, a factor which the Taxing Master was entitled to consider.
34. On this basis, the instruction fee assessed by the Deputy Registrar is not so disproportionate or unreasonable as to warrant intervention, and the discretion was therefore properly exercised.
35. The third issue is whether, as a matter of law, the Applicant is entitled to a higher instruction fee and getting up fees, and whether the application for reassessment should be allowed or dismissed with costs.
36. The law is trite that an award of costs is discretionary and a court will only vary an assessment where there is a misdirection in law, breach of principle or manifest injustice. In ex parte W’Njuguna & 6 others, the Court observed that judicial supervision of Taxing Officers is limited to circumstances where the Taxing Master has acted on wrong principle, ignored material considerations or fettered discretion.
37. In the present case, the Applicant has not demonstrated that the Deputy Registrar acted on a wrong principle or ignored material considerations. To the contrary, the Respondent has established that the Taxing Master considered the relevant provisions of the Advocates (Remuneration) Order and exercised her discretion within permissible bounds.
38. The Applicant’s contention that the matter’s complexity, meetings in five star hotels, engagement of experts and alleged KRA withholding justify a higher fee, does not, in law, translate to an automatic right to enhanced instruction fees. The mere invocation of complexity without demonstrable linkage to extraordinary work is insufficient to disturb an assessment properly made.
39. Accordingly, the third issue is determined in favour of the Respondent.
40. Being of the foregoing persuasion, I will not interfere with the Taxing Master’s findings on instruction fees. The reference therefore fails and is dismissed.
41. Notwithstanding the dismissal of the application, the Court makes a reservation as to costs, noting that the parties were engaged in a fiduciary relationship. In view of this relationship, the Court considers orders that each party bears its own costs of the reference.
42. This file is hereby closed.
DELIVERED (virtually), DATED & SIGNED this 12th day of March, 2026.
JOE M. OMIDO
JUDGE
FOR APPLICANT: Ms. Abuya for Mr. Obiero.
FOR RESPONDENT: No appearance.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.