' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KIAMBU
KIAMBU LAW COURTS
MISCELLANEOUS (REFERENCE) APPLICATION NO E234 OF 2024
IN THE MATTER OF THE ADVOCATES ACT
AND
IN THE MATTER OF THE ADVOCATE-CLIENT BILL OF COSTS
AND
IN THE MATTER OF REFERENCE FROM THE RULING OF THE TAXING OFFICER OF THE HIGH COURT AT KIAMBU
BETWEEN
REVEREND DAVID NJOROGE EVANS………………APPLICANT
VERSUS
NJERU, NYAGA & CO. ADVOCATES LLP………RESPONDENT
RULING
Before court is the Chamber Summons dated 27 th November 2024 and brought under Section 1A, 1B AND 3A of the Civil Procedure Act, Order 40 Rules 1,2 & 8 and Order 51 of the Civil Procedure Rules 2010, Paragraph 11(1)-(4) of the Advocates (Regulations) Remuneration Order (1962) and all other enabling provisions of law; The Applicant sought for the following orders:- SPENT
THAT pending the hearing of this application inter parties there be an Order of Stay of Execution in respect of KIAMBU HCCOMM. MISC NO. E007 OF 2024 – NJERU NYAGA & CO. ADVOCATES LLP VS REVEREND DAVID NJOROGE EVANS.
THAT this Honourable Court be pleased to vary or set aside the decision of the Taxing Officer contained in her typed Ruling delivered on the 20 th November 2024.
THAT the decision of the Taxing Officer as evidenced in her Ruling delivered on the 20 th November 2024 with respect to the Instruction Fees, Getting up fees and V.A.T in the Bill of Costs dated the 27 th May 2024 be set aside and taxed afresh by this Honourable Court.
The application is premised on the grounds that the taxing officer erred in principle as such the application herein has merit hence the execution will render this application nugatory and cause substantial loss to the Applicant. The application is brought without inordinate delay.
ACHOLA MICHAEL ODHIAMBO swore his supporting affidavit dated 27/11/2024. He stated that the Taxing Officer erred in principle by awarding excessive and unexplained costs, including miscalculating getting up fees at half instead of one-third of instruction fees, adding unjustified amounts (KSH.5,842/=), and failing to deduct a payment already made of Ksh.150,000/=. The Applicant is at risk of suffering substantial loss if a stay of execution is not granted.
The Respondent filed its grounds of opposition where it contends that the reference is without merit, misconceived for attempting to interfere with the Taxing Officer’s discretion and intended merely to delay and evade payment for the fairly assessed fees.
The application was canvassed by way of written submissions.
APPLICANT’S SUBMISSIONS.
The Applicant submits that there was no hearing because a Consent was recorded, therefore, the instruction fees of Ksh.500,000/= is excessive and contrary to the provisions of the Advocates Remuneration Order. He prayed that the instruction fee be awarded at Ksh.93,500/= instead.
The value of the land in the suit was unascertainable and never established. The value of the parcel of land was grossly overestimated at Ksh.30,000,000/= whereas the Applicant held that the land is valued at Ksh.3,000,000/=. Reliance was placed on the case of Miscellaneous Civil Application E265 of 2019- Eddy Nicholas O Orinda p/a One and Associates Advocates v Victoria Commercial Bank Limited (2020) eKLR.
Ksh.80,320/= was added to the instruction fee of Ksh.500,000/=. He stated that the getting up fee should be awarded at 1/3 of the instruction fee and not ½ as in their matter. Thereby bringing the getting up at Ksh.31,167/=. He contests the sum of Ksh.290,160/=. He also contests the sum of Ksh.80,000/= and states that the Taxing Officer didn’t explain where it came from. He stated that on the matter of the court attendances the correct amount is Ksh.21,900/=. He contested the VAT amount which was awarded at Ksh.139,276/80 and contends that it be awarded at Ksh.29,919/=. The Taxing Officer did not deduct Ksh.150,000/= which had already been paid. In total the Applicant prays that the award be at Ksh.88,818/=.
RESPONDENT’S SUBMISSION
The Respondent submitted that the Applicant’s reference lacks merit. It submitted that the Taxing Officer did not err in determining the instruction fees. The actual value of the suit was not a substantive issue and therefore it wasn’t determined. However, the matter was resolved through Alternative Dispute Resolution mechanisms and as such the Taxing Officer exercised her discretion in awarding Ksh.500,000/=. Reliance was placed on the case of Joreth Limited v Kigano & Associates, (2002) eKLR and Peter Muthoka & Another vs Ochieng & 3 others, (2019) eKLR.
The Ksh.290,160/= is half of the total fees amounting to Ksh.580,320/= and not the getting up fees as the Applicant contends.
The Taxing Officer erred by failing to award getting up fee. They submitted that even though there was no trial, they had done a lot of substantial pre-trial work which meets the threshold for getting up fees. Reliance was placed on the case of RHMck & another ((Suing through parents and next friend) NCMck v Kenya Motorsport Federation Ltd (Judicial Review Miscellaneous Application E143 of 2021) (2022) KEHC 10049 (KLR)(Judicial Review) (21 July 2022).
ISSUES FOR DETERMINATION
Having considered the application and the responses therein as well as the submissions by the parties, the issues arising for determination are
Whether the instruction fees of Kshs. 500,000/= awarded was based on the correct principles
Whether the taxing officer erred in taxing off getting up fees.
ANALYSIS
Whether the instruction fees of Kshs. 500,000/= awarded was based on the correct principles
The Applicant claims that the Taxing Officer erred in principle in awarding Kshs. 500,000/= as instruction fees. His argument is that there was no hearing as the parties recorded a consent as such the instruction fees of Kshs. 500,000/= is excessive.
On the other hand, the Respondent submits that the Taxing Officer was correct in exercising her discretion in awarding Kshs. 500,000/=.
The Taxing Officer in this matter found that the subject matter was not an issue for determination and that the matter was for specific performance and injunctive orders. In exercising her discretion, the Taxing Officer considered that the matter was resolved by way of mediation as such Kshs. 500,000/= was sufficient.
Discretion should be exercised judiciously bearing in mind relevant factors such that the award is not excessive or too low.
In the matter herein based on the fact that there was no hearing as the matter was concluded through mediation, and the fact that the matter was not complex; this court is satisfied that the Taxing Officer as much as she exercised her discretion, the award of Kshs. 500,000/= awarded for instruction fees is found to be on the higher side. The taxing master is found to have applied wrong principles of law in taxation of the instruction fee which were not in accordance with the provisions of the Advocates Remuneration Order; In the circumstances this Court will proceed to vary the amount as it is satisfied that an amount of Kshs. 100,000/= as being sufficient.
Whether the taxing officer erred in taxing off getting up fees.
With regard to getting up fees the Applicant contests the amount of Kshs. 290,160/= while claiming that the amount should be Kshs. 31,167/=. The Respondent contended that the Taxing Officer erred in failing to award getting up fees as it had done a lot of substantial pre-trial work in as much as there was no trial.
The Applicant’s contention that the Taxing Officer awarded getting up fees is misplaced. In taxing off the award for getting up fees, the Taxing Officer indeed noted that the matter herein was not complex so as to award getting up fees.
This court agrees with the Taxing Officer that the matter herein having been settled by way of mediation, and the same being for injunctive orders and specific performance the said matter cannot be said to have been complex as to warrant the award for getting up fees.
FINDINGS AND DETERMINATION
For those reasons this Court finds that the Reference to be partially meritorious.
The award in the sum of Kshs.500,000/- is hereby set aside and substituted with a sum of Kshs.100,000/=;
This Court finds that the taxing officer did not err in failing to award getting up fee and/or taxing off the getting up fee.
Each party to bear its own costs.
Orders Accordingly
DATED SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 1 ST DAY OF AUGUST, 2025
A.MSHILA
JUDGE
In the presence of;
Sanja – Court Assistant
Achola – for the Applicant
N/A – for the Respondent
'
IN THE HIGH COURT OF KENYA AT KIAMBU
KIAMBU LAW COURTS
MISCELLANEOUS (REFERENCE) APPLICATION NO E234 OF 2024
IN THE MATTER OF THE ADVOCATES ACT
AND
IN THE MATTER OF THE ADVOCATE-CLIENT BILL OF COSTS
AND
IN THE MATTER OF REFERENCE FROM THE RULING OF THE TAXING OFFICER OF THE HIGH COURT AT KIAMBU
BETWEEN
REVEREND DAVID NJOROGE EVANS………………APPLICANT
VERSUS
NJERU, NYAGA & CO. ADVOCATES LLP………RESPONDENT
RULING
Before court is the Chamber Summons dated 27 th November 2024 and brought under Section 1A, 1B AND 3A of the Civil Procedure Act, Order 40 Rules 1,2 & 8 and Order 51 of the Civil Procedure Rules 2010, Paragraph 11(1)-(4) of the Advocates (Regulations) Remuneration Order (1962) and all other enabling provisions of law; The Applicant sought for the following orders:- SPENT
THAT pending the hearing of this application inter parties there be an Order of Stay of Execution in respect of KIAMBU HCCOMM. MISC NO. E007 OF 2024 – NJERU NYAGA & CO. ADVOCATES LLP VS REVEREND DAVID NJOROGE EVANS.
THAT this Honourable Court be pleased to vary or set aside the decision of the Taxing Officer contained in her typed Ruling delivered on the 20 th November 2024.
THAT the decision of the Taxing Officer as evidenced in her Ruling delivered on the 20 th November 2024 with respect to the Instruction Fees, Getting up fees and V.A.T in the Bill of Costs dated the 27 th May 2024 be set aside and taxed afresh by this Honourable Court.
The application is premised on the grounds that the taxing officer erred in principle as such the application herein has merit hence the execution will render this application nugatory and cause substantial loss to the Applicant. The application is brought without inordinate delay.
ACHOLA MICHAEL ODHIAMBO swore his supporting affidavit dated 27/11/2024. He stated that the Taxing Officer erred in principle by awarding excessive and unexplained costs, including miscalculating getting up fees at half instead of one-third of instruction fees, adding unjustified amounts (KSH.5,842/=), and failing to deduct a payment already made of Ksh.150,000/=. The Applicant is at risk of suffering substantial loss if a stay of execution is not granted.
The Respondent filed its grounds of opposition where it contends that the reference is without merit, misconceived for attempting to interfere with the Taxing Officer’s discretion and intended merely to delay and evade payment for the fairly assessed fees.
The application was canvassed by way of written submissions.
APPLICANT’S SUBMISSIONS.
The Applicant submits that there was no hearing because a Consent was recorded, therefore, the instruction fees of Ksh.500,000/= is excessive and contrary to the provisions of the Advocates Remuneration Order. He prayed that the instruction fee be awarded at Ksh.93,500/= instead.
The value of the land in the suit was unascertainable and never established. The value of the parcel of land was grossly overestimated at Ksh.30,000,000/= whereas the Applicant held that the land is valued at Ksh.3,000,000/=. Reliance was placed on the case of Miscellaneous Civil Application E265 of 2019- Eddy Nicholas O Orinda p/a One and Associates Advocates v Victoria Commercial Bank Limited (2020) eKLR.
Ksh.80,320/= was added to the instruction fee of Ksh.500,000/=. He stated that the getting up fee should be awarded at 1/3 of the instruction fee and not ½ as in their matter. Thereby bringing the getting up at Ksh.31,167/=. He contests the sum of Ksh.290,160/=. He also contests the sum of Ksh.80,000/= and states that the Taxing Officer didn’t explain where it came from. He stated that on the matter of the court attendances the correct amount is Ksh.21,900/=. He contested the VAT amount which was awarded at Ksh.139,276/80 and contends that it be awarded at Ksh.29,919/=. The Taxing Officer did not deduct Ksh.150,000/= which had already been paid. In total the Applicant prays that the award be at Ksh.88,818/=.
RESPONDENT’S SUBMISSION
The Respondent submitted that the Applicant’s reference lacks merit. It submitted that the Taxing Officer did not err in determining the instruction fees. The actual value of the suit was not a substantive issue and therefore it wasn’t determined. However, the matter was resolved through Alternative Dispute Resolution mechanisms and as such the Taxing Officer exercised her discretion in awarding Ksh.500,000/=. Reliance was placed on the case of Joreth Limited v Kigano & Associates, (2002) eKLR and Peter Muthoka & Another vs Ochieng & 3 others, (2019) eKLR.
The Ksh.290,160/= is half of the total fees amounting to Ksh.580,320/= and not the getting up fees as the Applicant contends.
The Taxing Officer erred by failing to award getting up fee. They submitted that even though there was no trial, they had done a lot of substantial pre-trial work which meets the threshold for getting up fees. Reliance was placed on the case of RHMck & another ((Suing through parents and next friend) NCMck v Kenya Motorsport Federation Ltd (Judicial Review Miscellaneous Application E143 of 2021) (2022) KEHC 10049 (KLR)(Judicial Review) (21 July 2022).
ISSUES FOR DETERMINATION
Having considered the application and the responses therein as well as the submissions by the parties, the issues arising for determination are
Whether the instruction fees of Kshs. 500,000/= awarded was based on the correct principles
Whether the taxing officer erred in taxing off getting up fees.
ANALYSIS
Whether the instruction fees of Kshs. 500,000/= awarded was based on the correct principles
The Applicant claims that the Taxing Officer erred in principle in awarding Kshs. 500,000/= as instruction fees. His argument is that there was no hearing as the parties recorded a consent as such the instruction fees of Kshs. 500,000/= is excessive.
On the other hand, the Respondent submits that the Taxing Officer was correct in exercising her discretion in awarding Kshs. 500,000/=.
The Taxing Officer in this matter found that the subject matter was not an issue for determination and that the matter was for specific performance and injunctive orders. In exercising her discretion, the Taxing Officer considered that the matter was resolved by way of mediation as such Kshs. 500,000/= was sufficient.
Discretion should be exercised judiciously bearing in mind relevant factors such that the award is not excessive or too low.
In the matter herein based on the fact that there was no hearing as the matter was concluded through mediation, and the fact that the matter was not complex; this court is satisfied that the Taxing Officer as much as she exercised her discretion, the award of Kshs. 500,000/= awarded for instruction fees is found to be on the higher side. The taxing master is found to have applied wrong principles of law in taxation of the instruction fee which were not in accordance with the provisions of the Advocates Remuneration Order; In the circumstances this Court will proceed to vary the amount as it is satisfied that an amount of Kshs. 100,000/= as being sufficient.
Whether the taxing officer erred in taxing off getting up fees.
With regard to getting up fees the Applicant contests the amount of Kshs. 290,160/= while claiming that the amount should be Kshs. 31,167/=. The Respondent contended that the Taxing Officer erred in failing to award getting up fees as it had done a lot of substantial pre-trial work in as much as there was no trial.
The Applicant’s contention that the Taxing Officer awarded getting up fees is misplaced. In taxing off the award for getting up fees, the Taxing Officer indeed noted that the matter herein was not complex so as to award getting up fees.
This court agrees with the Taxing Officer that the matter herein having been settled by way of mediation, and the same being for injunctive orders and specific performance the said matter cannot be said to have been complex as to warrant the award for getting up fees.
FINDINGS AND DETERMINATION
For those reasons this Court finds that the Reference to be partially meritorious.
The award in the sum of Kshs.500,000/- is hereby set aside and substituted with a sum of Kshs.100,000/=;
This Court finds that the taxing officer did not err in failing to award getting up fee and/or taxing off the getting up fee.
Each party to bear its own costs.
Orders Accordingly
DATED SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 1 ST DAY OF AUGUST, 2025
A.MSHILA
JUDGE
In the presence of;
Sanja – Court Assistant
Achola – for the Applicant
N/A – for the Respondent
'