MAINA NJUGUNA & ASSOCIATES VS SHABAN HASSAN LEPOSO AND LUCY NYAMWIZA MUTAGURWA (As the administrators of the Estate of HASSAN IDDI MALAMBU (Deceased) AND MAJOR SHAABAN LEPOSO As the administrators of the Estate of IDDI MALAMBU HASSAN (Deceased)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

MISC. CIVIL CASE NO. E039 OF 2023

MAINA NJUGUNA & ASSOCIATES……………………………………….…APPLICANT

VERSUS

SHABAN HASSAN LEPOSE & LUCY

NYAWIZA MUTAGURWA…………………………………………………RESPONDENTS

RULING

1. By a Chamber Summons application dated 15^th March 2023, brought under Rule 11(2) of the Advocates Remuneration Order, Cap. 16 Laws of Kenya, the Applicant has moved this Court seeking the following orders:
2. That the Taxing Master’s decision dated 28^th day of February 2023 taxing the Applicant’s Bill of Costs of Kshs 3,149,674 be set aside on all items.
3. That this Honourable Court be satisfied to find that the Taxing Master exercised her discretion erroneously in arriving at an arbitrary value of the subject matter in disregard if the valuation filed.
4. That this Honourable Court be pleased to tax as drawn the Advocates/Clients Bill of Costs dated 9^th day of June 2021 in HCCCMISC/1/2022.
5. That in the alternative to prayer 3, this Honourable Court be pleased to remit the Advocates/Client’s Bill of Costs dated 9^th day of June 2021 in HCCCMISC/1/2022 before a different taxing master.
6. Costs of this application be provided for.
7. In support of the application, the Applicant has argued, mainly, that the Taxing Master exercised her discretion arbitrarily by arriving at the conclusion that the value of the subject matter was not disclosed when the value of the subject matter is contained in a valuation report by Procost Valuers Limited attached as exhibit 1 in the Applicant’s submissions; that the value is pegged at Kshs 2,000,000,000.
8. I have considered this matter. I note that in the Ruling of the Taxing Master, stated under the item “Instruction Fees” that “In the absence of a valuation report this matter cannot be ascertained”. It is therefore clear to this Court that for instructions fees, the Taxing Master assessed that item without basing it on the value of the property disclosed in the Valuation Report which the Applicant claims was attached in their submissions. The Taxing Master found that Kshs 2,000,000 was reasonable figure for instruction fees.
9. This is what has aggrieved the Applicant and necessitated this application.
10. I have considered all the grounds relied upon by the Applicant. I have read and considered submissions made orally in court. Mr. Towet for the Respondent argued that submissions cannot take the place of pleadings and that the value of the property must be ascertained from the pleadings. In reply to that issue, Mr. Maina responded that the valuation report was filed together with the Bill of Costs and was also attached to the submissions.
11. To resolve this issue, and after careful consideration of the issues raised by the Applicant, I hereby allow this application in the following terms:
12. The Taxing Master’s decision dated 28^th day of February 2023 taxing the Applicant’s Bill of Costs at Kshs 3,149,674 is hereby set aside.
13. That the Advocates/Client’s Bill of Costs dated 9^th June 2021 in HCCCMISC/1/2022 is hereby remitted to a different Taxing Master for taxing.
14. That the costs of this application shall be borne by the Respondent.
15. Orders shall issue accordingly.

Dated, signed and delivered this 17^th day of January 2025.