REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
MISCELLANEOUS APPLICATION NO E014 OF 2025
TAXATION REFERENCE
BETWEEN
MULONDO & COMPANY ADVOCATES LLP………………………………………………..ADVOCATE/APPLICANT
VERSUS
LANDMARK FREIGHT SERVICES LIMITED. CLIENT RESPONDENT
(Being a Reference from the Ruling of the Taxing Master, Hon R.K. Onkoba, at Nairobi delivered on March 11, 2025, in High Court Constitutional Petition No. E663 of 2024 formerly Milimani HC Commercial and Tax Miscellaneous Application 673 of 2023)
MULONDO & COMPANY ADVOCATES
LLP ……………………………………………..PETITIONER/APPLICANT
-VERSUS-
LANDMARK FREIGHT SERVICES LIMITED ….....…... RESPONDENT
RULING ON A REFERENCE DATED 25 TH MARCH, 2025
1. The Reference filed vide Chamber Summons is dated 25 th March 2025 and is brought under Sections 1A, 3B and 3A of the Civil Procedure Act and Paragraph Rule 11 of the Advocates (Remuneration) Order. The Applicant / Advocate seeks the following ORDERS: -
(1 The decision of the Taxing Master in the Constitutional Petition No. E663 of 2024, delivered on 11 th March 2025, concerning the Amended Advocate - Client Bill of Cost dated March 26, 2024, be set aside in its entirety and taxed afresh by this Honourable Court.
(2 That in the alternative, the Honourable Court be pleased to order that the Applicant’s Amended Advocate- Client Bill of Cost in its entirety be taxed afresh by another Taxing Master.
(3 That the costs of these proceedings be determined by this Honourable Court; and awarded to the Applicant
2. The genesis of this advocate-client fee dispute traces back to Nairobi High Court Constitutional Petition No. 290 of 2018, Landmark Freight Services Limited v Kenya Bureau of Standards & 4 Others where the Respondent (Landmark) was initially represented by M/s Prof. Tom Ojienda & Associates Advocates. This Court (differently constituted - Hon. Weldon Korir, J.) ultimately ordered the Kenya Bureau of Standards (KEBS) to lift seizure notices and release a massive consignment of brown sugar to the Respondent after finding it fit for human consumption. Aggrieved by this determination, KEBS preferred an appeal vide Nairobi Civil Appeal No. 578 of 2019.No. 578 of 2019 involving a multi-agency dispute with the Kenya Bureau of Standards (KEBS) and others.
3. The Applicant/ Advocate herein was subsequently instructed by the Respondent. Client to take over conduct of the matter and oppose the substantive appeal. Over the course of the engagement, the Applicant not only came on record but also entered into structured out-of-court alternative dispute resolution negotiations with KEBS. These processes culminated in a final Settlement Deed dated 5 th May 2023, under which the Respondent secured a global settlement sum of Kshs. 670,000,000.
4. The facts indicate that on 4 th May 4, 2023, exactly one day prior to the formal execution of the Deed of Settlement, the Respondent instructed another advocate who filed a Notice of Change of Advocates, thereby unceremoniously terminating the Applicant’s instructions. The Applicant subsequently filed its Bill of Costs to recover professional fees.
5. On 11 th March 2025, the Taxing Master Hon. R.K. Onkoba delivered a Ruling on the Applicant’s Amended Advocate-Client Bill of Costs which sought Kshs. 47,620,722.66. The Taxing Master however, rejected the settlement value as the basis for calculating fees, capped the basic instruction fee at Kshs. 100,000, and struck out the getting-up fees entirely. The heavy reduction of the fees which entailed certifying the final costs at only Kshs. 417,307.06 taxing off over Kshs. 47.2 million was based on the several findings.
6. The Taxing Master ruled that because the case had not substantively proceeded in court and was yet to be formally concluded, its complexity could not be deciphered and therefore, the instructions fees were capped at Kshs. 100,000/= which was a reduction from the requested Kshs. 19,650,000.
7. The taxing Master did not calculate instructions fees based on the Kshs. 670,000,000 settlement value, stating that the negotiation minutes were "without prejudice" and could not be relied upon.
8. On getting-up fees, the entire requested sum of Kshs. 6,550,000 was taxed off on account that it had not been properly certified under the Advocates (Remuneration) Order. Various meeting preparations and negotiation items were completely taxed off as they were not provided for under the Remuneration Order.
9. Aggrieved by this reduction, Mulondo & Company Advocates LLP filed the Chamber Summons application seeking to have the Taxing Master’s decision set aside in its entirety and the bill taxed afresh. Supported by an Affidavit sworn by Vincent Mulondo and written submissions from Morara Omoke Advocates, the Applicant raises several grounds.
10. The Applicant argues that under paragraph 1(b) of Schedule 6(A) of the Advocates (Remuneration) Order and established case law in Peter Muthoka & another v Ochieng & 3 others [2019] eKLR , where a suit is settled, the instruction fees must legally be computed proportionally based on the value of that settlement, in this case, Kshs. 670,000,000, rather than falling back on basic scales.
11. The Applicant contends that KEBS is a public body, making the negotiation minutes public records under the Evidence Act. Disregarding them as private or confidential violates the Applicant’s right to a fair hearing and ignores the significant "donkey work" done to secure the settlement.
12. The Applicant states that the Taxing Master erred by completely throwing out the getting-up fees, failing to award statutory interest at 14% per annum and disregarding extensive preparation and legal research. The Applicant also claims that the Taxing Master failed to give proper consideration to the substantial material because the ruling was written in a hurried manner on the very morning of its delivery.
13. The Respondent filed a Replying Affidavit sworn by Samuel Mburu Kamau on 25 th July 2025 in which he gives a history of the dispute and states that Justice W. Korir’s Rulings in 2019 centred on the disputed sugar consignment seized by the Kenya Bureau of Standards (KEBS). That initially, the court noted contradictions in expert testimony from KEBS witness Clarkson Ogembo Nyambok and ordered a simplified report. After recalling the witness for clarification, Justice Korir ruled on 29 th July 2019, that the sugar met East African standards once margins of error were considered. Consequently, KEBS was directed to lift the seizure and release the sugar.
14. It is averred that KEBS, dissatisfied with the High Court’s order, pursued relief in the Court of Appeal. That on 25 th October 2019, the appellate court granted a stay of execution, reasoning that releasing potentially expired or harmful sugar before the appeal would undermine public health and render the appeal nugatory. Later, on 8 th May 2020, Lady Justice F. Sichale allowed KEBS to file its Notice of Appeal out of time, citing administrative delays caused by the absence of a substantive Managing Director following an arrest. That accordingly this extension underscored the court’s willingness to balance procedural compliance with practical realities in safeguarding institutional interests.
15. The Respondent deposes that the dispute later shifted to legal fees in High Court Petition No. E663 of 2024 and Misc. App No. E014 of 2025 . That Mulondo & Company Advocates LLP sought Kshs. 47.6 million for representing Landmark Freight Services Limited in Civil Appeal No. 578 of 2019. However, on 11th March 2025, Taxing Master Hon. R.K. Onkoba reduced the claim to Kshs. 417,307.06, capping instruction fees at Kshs. 100,000 since the appeal was never concluded, excluding “Without Prejudice” settlement minutes, and rejecting getting up fees.
16. The Respondent asserts that the Taxing Master's decision was correct and lacks any error of principle because: Instruction Fees: Capping the instruction fees at Kshs 100,000 was justified because Civil Appeal No. 578 of 2019 was never substantively concluded, meaning its legal complexity could not be fully ascertained. Furthermore, minutes of settlement meetings relied upon by the Applicant to show a high subject matter value were confidential and legally barred from court reliance.
17. The Respondent contended that Getting Up Fees were properly taxed off because the Court of Appeal had never certified the case as complex or weighty, a requirement under Schedule 6 of the Advocates (Remuneration) (Amendment) Order, 2014 . The Respondent dismisses the Applicant's claims that the Taxing Master wrote the ruling too hurriedly as an absurd, uncalled-for direct attack falling outside the court's jurisdiction.
18. In a rejoinder, the Applicant filed a further affidavit dated 16 th October 2025 sworn by Vincent Mulondo stating that, while the underlying dispute started under Prof. Tom Ojienda & Associates Advocates in Petition No. 290 of 2018 , the Applicant took over and handled the subsequent appeal in Nairobi Civil Appeal No. 578 of 2019 and structured negotiations.
19. The Applicant contends that its role went beyond merely opposing the appeal because they filed pleadings, attended mentions, advised the client, and actively initiated and led the negotiation process between January and May 2023.
20. The Applicant avers that the Respondent unilaterally terminated the instructions on 4 th May 2023, exactly one day before the final Deed of Settlement was signed. The Applicant contends that this was a deliberate attempt to evade paying rightful professional fees for fully completed work.
21. The Applicant highlights the fact that the subject matter value was Kshs. 670,000,000 which should have been the basis for Instruction Fees. It is contended that the Taxing Master erred in principle by ignoring clear evidence of the subject matter’s value because the final, direct outcome of the Applicant’s representation was a Kshs. 670,000,000 settlement paid to the Respondent.
22. The Respondent argued that the negotiation minutes were "without prejudice" and inadmissible. The Applicant counters that once the parties executed and acted upon the final Deed of Settlement dated 5 th May 2023, the confidentiality cloak was lifted, making the documents admissible to prove value.
23. The Applicant rejects the argument that the appeal was not concluded. Relying on judicial precedents in Joreth Ltd v Kigano & Associates [2002] EA 92 and Peter Muthoka & Another v Ochieng & 3 others [2019] eKLR , they assert instruction fees are fully earned once substantial work is rendered and that a negotiated settlement constitutes a logical conclusion.
24. The Applicant clarifies that pointing out the Taxing Master’s procedural irregularities is not a personal attack, but a legitimate critique falling under the High Court’s supervisory jurisdiction. That the Respondent’s technical objections to admitting negotiation records are labelled as a breach of Article 50(1) and Article 159(2)(d) of the Constitution , which mandate that disputes be resolved on substantive merits rather than procedural technicalities.
25. It is asserted that the Respondent has fully received the Kshs. 670,000,000 but refuses to pay corresponding legal fees, which constitutes unjust enrichment at the expense of the Applicant’s labour. Accordingly, the Court should find merit in this Reference, set aside the Tax Master’s Ruling of 11 th March 2025 and reassess instruction fees based on the ascertained value of the subject matter of Kshs. 670,000,000.
26. The matter was canvassed by written submissions which I have keenly read and considered.
27. The Applicant’s submissions are dated 8 th September 2025. In summation, the Applicant argues that the Taxing Master committed a fatal error in principle by ignoring a signed Deed of Settlement dated 5 th May 2023, which granted the Respondent a global settlement sum of Kshs. 670,000,000 following protracted litigation and out-of-court negotiations against the Kenya Bureau of Standards (KEBS) in Civil Appeal No. 578 of 2019 . Highlighting that the Respondent unceremoniously terminated their services just one day before the settlement was formally executed, the Applicant insists they are legally entitled to scale fees calculated directly from that Kshs. 670,000,000 subject matter value. They claim full basic instruction fees enhanced for complexity, getting-up fees for their preparatory work, alternative dispute resolution negotiation rates, a mandatory 50% statutory advocate-client increment, VAT, disbursements, and 14% annual interest. Consequently, the Applicant requests the Court to set aside the impugned ruling and either reassess the Bill of Costs as drawn or remit it to a different Taxing Officer for fresh assessment.
28. The Respondent’s submissions are dated 28 th November 2025. The Respondent urges the High Court to dismiss the Applicant’s Chamber Summons Application with costs, asserting that the Taxing Master, Hon. R.K. Onkoba, correctly applied the law and committed no error of principle in her taxation ruling of 11 th March 2025. The Respondent argues that the underlying suit, Nairobi High Court Constitutional Petition No. 290 of 2018 , primarily sought declaratory, injunctive and judicial review orders with no ascertainable financial subject matter value, meaning the Taxing Master properly exercised her statutory discretion under Schedule 6 on appeals to increase the default instruction fee from Kshs 25,200 to Kshs 100,000.
29. Furthermore, the Respondent maintains that the Applicant’s reliance on a purported Kshs 670,000,000 settlement is completely legally untenable because the negotiation minutes were inadmissible due to being conducted on a confidential "Without Prejudice" basis. Additionally, they emphasize that those minutes referenced entirely different case numbers and had no bearing on Nairobi Civil Appeal No. 578 of 2019, which forms the basis of these taxation proceedings and remains pending without a final judgment to indicate any complexity or novelty.
30. Finally, the Respondent defends the complete striking off of the claimed Kshs 6,550,000 getting-up fees, citing Schedule 6 paragraph 3 and National Bank of Kenya vs. Rachuonyo & Rachuonyo Advocates [2021] eKLR, that such fees are strictly conditional upon the Court of Appeal formally certifying the case as complex and weighty at the conclusion of a hearing.
Analysis and Determination
31. Having considered the respective parties’ positions, the main issue for my determination is whether the Application has merit and can be allowed.
32. The principles governing references from a Taxing Officer’s decision are well-settled. Court taxation is an exercise of judicial discretion. The Court will not disturb a Taxing Master’s assessment purely on questions of quantum unless it is demonstrated that the decision was driven by an error of principle, or that the final award is so manifestly excessive or inordinately low as to imply such an error and occasion a miscarriage of justice.
33. The powers vested in this Court in a reference as stated in Joreth Limited v Kigano & Associates [2002] KECA 153 (KLR) are as follows:
“A High Court judge when hearing such an objection is not sitting in his capacity as a judge exercising his appellate jurisdiction as, say, would be the case when he hears an appeal against the decision of a magistrate. The taxing officer whilst taxing a bill of costs is carrying out his functions as such only. He is an officer of the superior court appointed to Tax bills of costs.”
34. The principles upon which this Court can overturn the decision of a Taxing Officer are spelt out in the case of Peter Muthoka & another v Ochieng & 3 others [2019] KECA 597 (KLR) as follows:
“It is not lost to us, as we address that single issue, 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”
35. In an earlier case of First American Bank of Kenya v Shah & Others [2002] 1 EA 64); (Civil Suit 2255 of 2000) [2002] KEHC 1277 (KLR) (Civ) (25 April 2002) (Ruling), Ringera J (as he then was) held thus: -
“…. First, I find that on the authorities, this court cannot interfere with the taxing officer’s decision on taxation unless it is shown that either 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. (See Steel & Petroleum (E.A) Ltd Vs. Uganda Sugar Factory (Supra). Of course. It would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors. And according to the Advocates Remuneration Order itself, some of the relevant factors to take into account include the nature and importance of the cause or matter, the amount or value of the subject matter involved, the interest of the parties, the general conduct of the proceedings and any direction by the trial Judge. Needless to state not all the above factors may exist in any given case, and it is therefore open to the Taxing Officer to consider only such factors as may exist in the actual case before him. If the court considers that the decision of the Taxing Officer discloses errors of principle, the normal practice is to remit it back to the Taxing Officer for re-assessment unless the Judge is satisfied that the error cannot materially have affected the assessment. (see Nanyuki Esso Service V Touring Cars Ltd; Steel & Petroleum (E.A.) Ltd V Uganda Sugar Factory; Thomas James Arthur V Nyeri Electricity Undertakers and Joreth V Kigano & Associates). However, the Judge does have jurisdiction, and it is within his discretion to reassess the bill himself; (See Steel & Petroleum (E.A.) Ltd and Thomas James Arthur). The court is not entitled to upset a taxation because in its opinion, the amount awarded was high (See Steel Construction & Petroleum Engineering (E.A.) Ltd. The other general principle is that it is within the discretion of the Taxing Officer to increase or reduce the instruction fees and that the amount of the increase or reduction is discretionary. (See Thomas James Arthur V Nyeri Electricity Undertakers) …..”
36. Similarly, Ojwang J. (as he then was) in Republic v Ministry of Agriculture & 2 others Ex parte Muchiri W’njuguna & 6 Others [2006] eKLR , held inter alia :
“The taxation of costs is not a mathematical exercise; it is entirely a matter of opinion based on experience. A Court will not, therefore, interfere with the award of a taxing officer, particularly where he is an officer of great experience, merely because it thinks the award somewhat too high or too low; it will only interfere if it thinks the award so high or so low as to amount to an injustice to one party or the other…. The court cannot interfere with the taxing officer’s decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was manifestly excessive as to justify an interference that it was based on an error of principle.”
37. From the above, an error of principle includes a failure to take into account mandatory relevant factors, considering completely irrelevant factors, or misapplying the clear statutory provisions of the Advocates (Remuneration) Order. It is within this restrictive scope that this Court reviews the impugned ruling.
38. This Court notes that there was no agreement in writing under section 45 of the Advocates Act for fees between the Advocate and the Client.
39. On instructions fees, the Taxing Master capped the Applicant’s instruction fees at Kshs. 100,000 on the grounds that Civil Appeal No. 578 of 2019 was never substantively argued to a final judgment in court, making its complexity unquantifiable; that the original petition sought declaratory and injunctive public law remedies without a specific, liquid subject matter; and that the minutes of the negotiation sessions were marked "Without Prejudice" and were thus inadmissible.
40. The Respondent argued in support of this position, adding that the negotiation minutes cited two entirely separate appeal numbers Civil Appeal No. 288 of 2019 and Civil Appeal No. 087 of 2022 but that the subject matter of the suit before the Court being Civil Appeal No. 578 of 2019 was explicitly omitted. Conversely, the Applicant argues that the starting point for determining the value of a subject matter under Schedule 6(A)(1)(b) of the Advocates (Remuneration) Order is disjunctive and it must be derived from either the pleadings, the judgment, or the settlement.
41. The Applicant relies on the locus classicus case of Peter Muthoka and Joreth Limited v Kigano & Associates [2002] EA 92 which mandate that where a matter is settled, the terms of the settlement override the pleadings as the definitive guide to value.
42. I have considered the provisions of Schedule 6 B of the Advocates Remuneration Order which provides:
A — PARTY AND PARTY COSTS
1. Instruction fees
Subject as hereinafter provided, the fees for instructions shall be as follows—
…..
The fees for instructions in suits shall be as follows, unless the taxing officer in his discretion shall increase or (unless otherwise provided) reduce it—
(j) Constitutional petitions and prerogative orders
To present or oppose an application for a Constitutional and Prerogative Orders such fee as the taxing master in the exercise of his discretion and taking into consideration the nature and importance of the petition or application, the complexity of the matter and the difficulty or novelty of the question raised, the amount or value of the subject matter, the time expended by the advocate—
(i) where the matter is not complex or opposed such sum as may be reasonable but not less than 45,000
(ii) where the matter is opposed and found to satisfy the criteria set out above, such sum as may reasonable but not less than 100,000
(iii) to present or oppose application for setting aside arbitral award 50,000
B - ADVOCATE AND CLIENT COSTS
As between advocate and client the minimum fee shall be—
(a) the fees prescribed in A above, increased by 50%; or
(b) the fees ordered by the court, increased by 50%; or
(c) the fees agreed by the parties under paragraph 57 of this order increased by 50%; as the case may be, such increase to include all proper attendances on the client and all necessary correspondences.
43. In SC Petition (Appl.) No. E024 of 2023 and Applications Nos. E030, E034 & E038 of 2024 Nairobi Bottlers Limited vs. Mark Ndumia Ndungu and Coca Cola Central, East &West Africa Limited the Supreme Court set out the guiding principles for taxation as follows: -
“[8] This Court, in the case of Fredrick Otieno Outa v Jared Otieno Odoto & 3 Others SC Petition No 6 of 2014; [2023] KESC 75 (KLR) highlighted the following principles to be considered in an application for setting aside a taxation decision:
“(11) A certificate of taxation will be set aside, and a single Judge can only interfere with the taxing officer’s decision on taxation if;
a. there is an error of principle committed by the taxing officer;
b. the fee awarded is shown to be manifestly excessive or is so high as to confine access to the court to the wealthy;(and I may add, conversely, if the award is so manifestly deficient as to amount to an injustice to one party).
c. the court is satisfied that the successful litigant is entitled to fair reimbursement for the costs he has incurred, (and I may add, the award must not be regarded as a punishment of the defeated party but as a recompense to the successful party for the expenses to which he had been subjected by the other party); and
d. the award proposed is so far as practicable, consistent with previous awards in similar cases.
To these general principles, I may add that;
i. There is no mathematical formula to be used by the taxing officer to arrive at a precise figure because each case must be considered and decided on its own peculiar circumstances,
ii. Although the taxing officer exercises unfettered judicial discretion in matters of taxation that discretion must be exercised judicially, not whimsically,
iii. The single Judge will normally not interfere with the decision of the taxing officer merely because the Judge believes he would have awarded a differe nt figure had he been in the taxing officer’s shoes.”
44. The Supreme Court further gave guidance on how to assess instructions fees which forms the crux of this Reference: -
“[9] Bearing these principles in mind, I turn to the reference. Starting with the value of the subject matter. The Taxing Officer handled the issue as follows:
“[9] The last issue for determination is on what really constitutes the value of the subject matter in this case. Counsel for the 1st respondent has submitted at length on this issue and posited that the value of the subject matter is Ksh.8,888,367,426.00. This figure, they submit, was the petitioner’s own calculation hence they ought to be bound by it. In rebuttal, the petitioner has argued that this was merely an approximation of what the petitioner would have incurred in compliance with the final orders of the High Court had the Supreme Court not granted the conservatory orders. According to the Petitioner, the claim before the High Court, Court of Appeal and Supreme Court was on the issue of breach and or violation of consumer rights as enshrined under Article 46 of the Constitution and nothing turned on the value of the subject matter.
[10] I have perused the entire court record, and I must agree with the petitioner that the petition before the High Court did not have any quantifiable value. The footprints of Kshs.8,888,367,426.00 found their way in these proceedings at stage of seeking conservatory orders.”
[10] It has to be restated that the genesis of this Reference is a constitutional petition that originated from the High Court through the Court of Appeal up to this Court and concerned the appellant/respondent’s omission in displaying the nutritional value, storage directions, customer care email address and phone number on the Coca Cola, Fanta, Krest, Stoney and Sprite glass bottles as it does on its plastic bottles and how this constituted a violation of consumer rights under Article 46(1)(a), (b) and (c) of the Constitution. The High Court and the Court of Appeal decided in favour of the 1 st respondent and issued declarations that the appellant/respondent’s omission constituted a violation of the consumer rights under Article 46(1)(a), (b) and (c) of the Constitution and that the omission amounted to discrimination and unequal treatment of consumers contrary to Article 27(2), (4) and (5) of the Constitution. The Court issued a mandatory injunction directing the appellant/respondent to provide the nutritional information storage directions and customer care mobile number and email address on all of their Coca Cola, Fanta, Krest, Stoney and Sprite brands glass bottles within six (6) months of the date of delivery of the High Court judgment.
[11] Therefore, I agree with the Taxing Officer that the subject matter is not discernible either from the Judgment or settled consent and the figure put forward of Kshs.8.8 billion emanated from the conservatory proceedings. It is thus my finding that the Taxing Officer was well guided by the Court’s decision in Kenya Airports Authority v Otieno Ragot and Company Advocates (Petition E011 of 2023) [2024] KESC 44 (KLR) where the Court held as follows:
“57. Whilst the determination of the value of subject matter from a judgment and settlement of the parties is quite straight forward, the determination from pleadings is not. The determination of the value of the subject matter, may be difficult, for instance, where the pleadings/suit is struck out at a preliminary stage, such as in this case, and the value can only be determined/ascertained upon the conclusion of a trial. …..
59. We are of a considered opinion that a claim in a suit which is struck out at the preliminary stage does not ipso facto render that claim or amount pleaded therein without more the value of the subject matter. The position still remains that the amount therein has not been ascertained or determined, and as such, it cannot be applied as the value of a subject matter in a disputed taxation. The application of such a claim or amount as the value of the subject matter would go against the rationale that the fees/costs paid to an advocate and a successful party should be reasonable.” [Emphasis added]
[12] Now turning to item No. 1 being the instruction fees, I am guided by Paragraph 9 (2) of the Third Schedule to the effect that the fees allowed for instructions to appeal or to oppose an appeal is the discretion of the taxing officer and shall be such sum as he shall consider reasonable, having regard to the amount involved in the appeal, its nature, importance an
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
MISCELLANEOUS APPLICATION NO E014 OF 2025
TAXATION REFERENCE
BETWEEN
MULONDO & COMPANY ADVOCATES LLP………………………………………………..ADVOCATE/APPLICANT
VERSUS
LANDMARK FREIGHT SERVICES LIMITED. CLIENT RESPONDENT
(Being a Reference from the Ruling of the Taxing Master, Hon R.K. Onkoba, at Nairobi delivered on March 11, 2025, in High Court Constitutional Petition No. E663 of 2024 formerly Milimani HC Commercial and Tax Miscellaneous Application 673 of 2023)
MULONDO & COMPANY ADVOCATES
LLP ……………………………………………..PETITIONER/APPLICANT
-VERSUS-
LANDMARK FREIGHT SERVICES LIMITED ….....…... RESPONDENT
RULING ON A REFERENCE DATED 25 TH MARCH, 2025
1. The Reference filed vide Chamber Summons is dated 25 th March 2025 and is brought under Sections 1A, 3B and 3A of the Civil Procedure Act and Paragraph Rule 11 of the Advocates (Remuneration) Order. The Applicant / Advocate seeks the following ORDERS: -
(1 The decision of the Taxing Master in the Constitutional Petition No. E663 of 2024, delivered on 11 th March 2025, concerning the Amended Advocate - Client Bill of Cost dated March 26, 2024, be set aside in its entirety and taxed afresh by this Honourable Court.
(2 That in the alternative, the Honourable Court be pleased to order that the Applicant’s Amended Advocate- Client Bill of Cost in its entirety be taxed afresh by another Taxing Master.
(3 That the costs of these proceedings be determined by this Honourable Court; and awarded to the Applicant
2. The genesis of this advocate-client fee dispute traces back to Nairobi High Court Constitutional Petition No. 290 of 2018, Landmark Freight Services Limited v Kenya Bureau of Standards & 4 Others where the Respondent (Landmark) was initially represented by M/s Prof. Tom Ojienda & Associates Advocates. This Court (differently constituted - Hon. Weldon Korir, J.) ultimately ordered the Kenya Bureau of Standards (KEBS) to lift seizure notices and release a massive consignment of brown sugar to the Respondent after finding it fit for human consumption. Aggrieved by this determination, KEBS preferred an appeal vide Nairobi Civil Appeal No. 578 of 2019.No. 578 of 2019 involving a multi-agency dispute with the Kenya Bureau of Standards (KEBS) and others.
3. The Applicant/ Advocate herein was subsequently instructed by the Respondent. Client to take over conduct of the matter and oppose the substantive appeal. Over the course of the engagement, the Applicant not only came on record but also entered into structured out-of-court alternative dispute resolution negotiations with KEBS. These processes culminated in a final Settlement Deed dated 5 th May 2023, under which the Respondent secured a global settlement sum of Kshs. 670,000,000.
4. The facts indicate that on 4 th May 4, 2023, exactly one day prior to the formal execution of the Deed of Settlement, the Respondent instructed another advocate who filed a Notice of Change of Advocates, thereby unceremoniously terminating the Applicant’s instructions. The Applicant subsequently filed its Bill of Costs to recover professional fees.
5. On 11 th March 2025, the Taxing Master Hon. R.K. Onkoba delivered a Ruling on the Applicant’s Amended Advocate-Client Bill of Costs which sought Kshs. 47,620,722.66. The Taxing Master however, rejected the settlement value as the basis for calculating fees, capped the basic instruction fee at Kshs. 100,000, and struck out the getting-up fees entirely. The heavy reduction of the fees which entailed certifying the final costs at only Kshs. 417,307.06 taxing off over Kshs. 47.2 million was based on the several findings.
6. The Taxing Master ruled that because the case had not substantively proceeded in court and was yet to be formally concluded, its complexity could not be deciphered and therefore, the instructions fees were capped at Kshs. 100,000/= which was a reduction from the requested Kshs. 19,650,000.
7. The taxing Master did not calculate instructions fees based on the Kshs. 670,000,000 settlement value, stating that the negotiation minutes were "without prejudice" and could not be relied upon.
8. On getting-up fees, the entire requested sum of Kshs. 6,550,000 was taxed off on account that it had not been properly certified under the Advocates (Remuneration) Order. Various meeting preparations and negotiation items were completely taxed off as they were not provided for under the Remuneration Order.
9. Aggrieved by this reduction, Mulondo & Company Advocates LLP filed the Chamber Summons application seeking to have the Taxing Master’s decision set aside in its entirety and the bill taxed afresh. Supported by an Affidavit sworn by Vincent Mulondo and written submissions from Morara Omoke Advocates, the Applicant raises several grounds.
10. The Applicant argues that under paragraph 1(b) of Schedule 6(A) of the Advocates (Remuneration) Order and established case law in Peter Muthoka & another v Ochieng & 3 others [2019] eKLR , where a suit is settled, the instruction fees must legally be computed proportionally based on the value of that settlement, in this case, Kshs. 670,000,000, rather than falling back on basic scales.
11. The Applicant contends that KEBS is a public body, making the negotiation minutes public records under the Evidence Act. Disregarding them as private or confidential violates the Applicant’s right to a fair hearing and ignores the significant "donkey work" done to secure the settlement.
12. The Applicant states that the Taxing Master erred by completely throwing out the getting-up fees, failing to award statutory interest at 14% per annum and disregarding extensive preparation and legal research. The Applicant also claims that the Taxing Master failed to give proper consideration to the substantial material because the ruling was written in a hurried manner on the very morning of its delivery.
13. The Respondent filed a Replying Affidavit sworn by Samuel Mburu Kamau on 25 th July 2025 in which he gives a history of the dispute and states that Justice W. Korir’s Rulings in 2019 centred on the disputed sugar consignment seized by the Kenya Bureau of Standards (KEBS). That initially, the court noted contradictions in expert testimony from KEBS witness Clarkson Ogembo Nyambok and ordered a simplified report. After recalling the witness for clarification, Justice Korir ruled on 29 th July 2019, that the sugar met East African standards once margins of error were considered. Consequently, KEBS was directed to lift the seizure and release the sugar.
14. It is averred that KEBS, dissatisfied with the High Court’s order, pursued relief in the Court of Appeal. That on 25 th October 2019, the appellate court granted a stay of execution, reasoning that releasing potentially expired or harmful sugar before the appeal would undermine public health and render the appeal nugatory. Later, on 8 th May 2020, Lady Justice F. Sichale allowed KEBS to file its Notice of Appeal out of time, citing administrative delays caused by the absence of a substantive Managing Director following an arrest. That accordingly this extension underscored the court’s willingness to balance procedural compliance with practical realities in safeguarding institutional interests.
15. The Respondent deposes that the dispute later shifted to legal fees in High Court Petition No. E663 of 2024 and Misc. App No. E014 of 2025 . That Mulondo & Company Advocates LLP sought Kshs. 47.6 million for representing Landmark Freight Services Limited in Civil Appeal No. 578 of 2019. However, on 11th March 2025, Taxing Master Hon. R.K. Onkoba reduced the claim to Kshs. 417,307.06, capping instruction fees at Kshs. 100,000 since the appeal was never concluded, excluding “Without Prejudice” settlement minutes, and rejecting getting up fees.
16. The Respondent asserts that the Taxing Master's decision was correct and lacks any error of principle because: Instruction Fees: Capping the instruction fees at Kshs 100,000 was justified because Civil Appeal No. 578 of 2019 was never substantively concluded, meaning its legal complexity could not be fully ascertained. Furthermore, minutes of settlement meetings relied upon by the Applicant to show a high subject matter value were confidential and legally barred from court reliance.
17. The Respondent contended that Getting Up Fees were properly taxed off because the Court of Appeal had never certified the case as complex or weighty, a requirement under Schedule 6 of the Advocates (Remuneration) (Amendment) Order, 2014 . The Respondent dismisses the Applicant's claims that the Taxing Master wrote the ruling too hurriedly as an absurd, uncalled-for direct attack falling outside the court's jurisdiction.
18. In a rejoinder, the Applicant filed a further affidavit dated 16 th October 2025 sworn by Vincent Mulondo stating that, while the underlying dispute started under Prof. Tom Ojienda & Associates Advocates in Petition No. 290 of 2018 , the Applicant took over and handled the subsequent appeal in Nairobi Civil Appeal No. 578 of 2019 and structured negotiations.
19. The Applicant contends that its role went beyond merely opposing the appeal because they filed pleadings, attended mentions, advised the client, and actively initiated and led the negotiation process between January and May 2023.
20. The Applicant avers that the Respondent unilaterally terminated the instructions on 4 th May 2023, exactly one day before the final Deed of Settlement was signed. The Applicant contends that this was a deliberate attempt to evade paying rightful professional fees for fully completed work.
21. The Applicant highlights the fact that the subject matter value was Kshs. 670,000,000 which should have been the basis for Instruction Fees. It is contended that the Taxing Master erred in principle by ignoring clear evidence of the subject matter’s value because the final, direct outcome of the Applicant’s representation was a Kshs. 670,000,000 settlement paid to the Respondent.
22. The Respondent argued that the negotiation minutes were "without prejudice" and inadmissible. The Applicant counters that once the parties executed and acted upon the final Deed of Settlement dated 5 th May 2023, the confidentiality cloak was lifted, making the documents admissible to prove value.
23. The Applicant rejects the argument that the appeal was not concluded. Relying on judicial precedents in Joreth Ltd v Kigano & Associates [2002] EA 92 and Peter Muthoka & Another v Ochieng & 3 others [2019] eKLR , they assert instruction fees are fully earned once substantial work is rendered and that a negotiated settlement constitutes a logical conclusion.
24. The Applicant clarifies that pointing out the Taxing Master’s procedural irregularities is not a personal attack, but a legitimate critique falling under the High Court’s supervisory jurisdiction. That the Respondent’s technical objections to admitting negotiation records are labelled as a breach of Article 50(1) and Article 159(2)(d) of the Constitution , which mandate that disputes be resolved on substantive merits rather than procedural technicalities.
25. It is asserted that the Respondent has fully received the Kshs. 670,000,000 but refuses to pay corresponding legal fees, which constitutes unjust enrichment at the expense of the Applicant’s labour. Accordingly, the Court should find merit in this Reference, set aside the Tax Master’s Ruling of 11 th March 2025 and reassess instruction fees based on the ascertained value of the subject matter of Kshs. 670,000,000.
26. The matter was canvassed by written submissions which I have keenly read and considered.
27. The Applicant’s submissions are dated 8 th September 2025. In summation, the Applicant argues that the Taxing Master committed a fatal error in principle by ignoring a signed Deed of Settlement dated 5 th May 2023, which granted the Respondent a global settlement sum of Kshs. 670,000,000 following protracted litigation and out-of-court negotiations against the Kenya Bureau of Standards (KEBS) in Civil Appeal No. 578 of 2019 . Highlighting that the Respondent unceremoniously terminated their services just one day before the settlement was formally executed, the Applicant insists they are legally entitled to scale fees calculated directly from that Kshs. 670,000,000 subject matter value. They claim full basic instruction fees enhanced for complexity, getting-up fees for their preparatory work, alternative dispute resolution negotiation rates, a mandatory 50% statutory advocate-client increment, VAT, disbursements, and 14% annual interest. Consequently, the Applicant requests the Court to set aside the impugned ruling and either reassess the Bill of Costs as drawn or remit it to a different Taxing Officer for fresh assessment.
28. The Respondent’s submissions are dated 28 th November 2025. The Respondent urges the High Court to dismiss the Applicant’s Chamber Summons Application with costs, asserting that the Taxing Master, Hon. R.K. Onkoba, correctly applied the law and committed no error of principle in her taxation ruling of 11 th March 2025. The Respondent argues that the underlying suit, Nairobi High Court Constitutional Petition No. 290 of 2018 , primarily sought declaratory, injunctive and judicial review orders with no ascertainable financial subject matter value, meaning the Taxing Master properly exercised her statutory discretion under Schedule 6 on appeals to increase the default instruction fee from Kshs 25,200 to Kshs 100,000.
29. Furthermore, the Respondent maintains that the Applicant’s reliance on a purported Kshs 670,000,000 settlement is completely legally untenable because the negotiation minutes were inadmissible due to being conducted on a confidential "Without Prejudice" basis. Additionally, they emphasize that those minutes referenced entirely different case numbers and had no bearing on Nairobi Civil Appeal No. 578 of 2019, which forms the basis of these taxation proceedings and remains pending without a final judgment to indicate any complexity or novelty.
30. Finally, the Respondent defends the complete striking off of the claimed Kshs 6,550,000 getting-up fees, citing Schedule 6 paragraph 3 and National Bank of Kenya vs. Rachuonyo & Rachuonyo Advocates [2021] eKLR, that such fees are strictly conditional upon the Court of Appeal formally certifying the case as complex and weighty at the conclusion of a hearing.
Analysis and Determination
31. Having considered the respective parties’ positions, the main issue for my determination is whether the Application has merit and can be allowed.
32. The principles governing references from a Taxing Officer’s decision are well-settled. Court taxation is an exercise of judicial discretion. The Court will not disturb a Taxing Master’s assessment purely on questions of quantum unless it is demonstrated that the decision was driven by an error of principle, or that the final award is so manifestly excessive or inordinately low as to imply such an error and occasion a miscarriage of justice.
33. The powers vested in this Court in a reference as stated in Joreth Limited v Kigano & Associates [2002] KECA 153 (KLR) are as follows:
“A High Court judge when hearing such an objection is not sitting in his capacity as a judge exercising his appellate jurisdiction as, say, would be the case when he hears an appeal against the decision of a magistrate. The taxing officer whilst taxing a bill of costs is carrying out his functions as such only. He is an officer of the superior court appointed to Tax bills of costs.”
34. The principles upon which this Court can overturn the decision of a Taxing Officer are spelt out in the case of Peter Muthoka & another v Ochieng & 3 others [2019] KECA 597 (KLR) as follows:
“It is not lost to us, as we address that single issue, 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”
35. In an earlier case of First American Bank of Kenya v Shah & Others [2002] 1 EA 64); (Civil Suit 2255 of 2000) [2002] KEHC 1277 (KLR) (Civ) (25 April 2002) (Ruling), Ringera J (as he then was) held thus: -
“…. First, I find that on the authorities, this court cannot interfere with the taxing officer’s decision on taxation unless it is shown that either 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. (See Steel & Petroleum (E.A) Ltd Vs. Uganda Sugar Factory (Supra). Of course. It would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors. And according to the Advocates Remuneration Order itself, some of the relevant factors to take into account include the nature and importance of the cause or matter, the amount or value of the subject matter involved, the interest of the parties, the general conduct of the proceedings and any direction by the trial Judge. Needless to state not all the above factors may exist in any given case, and it is therefore open to the Taxing Officer to consider only such factors as may exist in the actual case before him. If the court considers that the decision of the Taxing Officer discloses errors of principle, the normal practice is to remit it back to the Taxing Officer for re-assessment unless the Judge is satisfied that the error cannot materially have affected the assessment. (see Nanyuki Esso Service V Touring Cars Ltd; Steel & Petroleum (E.A.) Ltd V Uganda Sugar Factory; Thomas James Arthur V Nyeri Electricity Undertakers and Joreth V Kigano & Associates). However, the Judge does have jurisdiction, and it is within his discretion to reassess the bill himself; (See Steel & Petroleum (E.A.) Ltd and Thomas James Arthur). The court is not entitled to upset a taxation because in its opinion, the amount awarded was high (See Steel Construction & Petroleum Engineering (E.A.) Ltd. The other general principle is that it is within the discretion of the Taxing Officer to increase or reduce the instruction fees and that the amount of the increase or reduction is discretionary. (See Thomas James Arthur V Nyeri Electricity Undertakers) …..”
36. Similarly, Ojwang J. (as he then was) in Republic v Ministry of Agriculture & 2 others Ex parte Muchiri W’njuguna & 6 Others [2006] eKLR , held inter alia :
“The taxation of costs is not a mathematical exercise; it is entirely a matter of opinion based on experience. A Court will not, therefore, interfere with the award of a taxing officer, particularly where he is an officer of great experience, merely because it thinks the award somewhat too high or too low; it will only interfere if it thinks the award so high or so low as to amount to an injustice to one party or the other…. The court cannot interfere with the taxing officer’s decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was manifestly excessive as to justify an interference that it was based on an error of principle.”
37. From the above, an error of principle includes a failure to take into account mandatory relevant factors, considering completely irrelevant factors, or misapplying the clear statutory provisions of the Advocates (Remuneration) Order. It is within this restrictive scope that this Court reviews the impugned ruling.
38. This Court notes that there was no agreement in writing under section 45 of the Advocates Act for fees between the Advocate and the Client.
39. On instructions fees, the Taxing Master capped the Applicant’s instruction fees at Kshs. 100,000 on the grounds that Civil Appeal No. 578 of 2019 was never substantively argued to a final judgment in court, making its complexity unquantifiable; that the original petition sought declaratory and injunctive public law remedies without a specific, liquid subject matter; and that the minutes of the negotiation sessions were marked "Without Prejudice" and were thus inadmissible.
40. The Respondent argued in support of this position, adding that the negotiation minutes cited two entirely separate appeal numbers Civil Appeal No. 288 of 2019 and Civil Appeal No. 087 of 2022 but that the subject matter of the suit before the Court being Civil Appeal No. 578 of 2019 was explicitly omitted. Conversely, the Applicant argues that the starting point for determining the value of a subject matter under Schedule 6(A)(1)(b) of the Advocates (Remuneration) Order is disjunctive and it must be derived from either the pleadings, the judgment, or the settlement.
41. The Applicant relies on the locus classicus case of Peter Muthoka and Joreth Limited v Kigano & Associates [2002] EA 92 which mandate that where a matter is settled, the terms of the settlement override the pleadings as the definitive guide to value.
42. I have considered the provisions of Schedule 6 B of the Advocates Remuneration Order which provides:
A — PARTY AND PARTY COSTS
1. Instruction fees
Subject as hereinafter provided, the fees for instructions shall be as follows—
…..
The fees for instructions in suits shall be as follows, unless the taxing officer in his discretion shall increase or (unless otherwise provided) reduce it—
(j) Constitutional petitions and prerogative orders
To present or oppose an application for a Constitutional and Prerogative Orders such fee as the taxing master in the exercise of his discretion and taking into consideration the nature and importance of the petition or application, the complexity of the matter and the difficulty or novelty of the question raised, the amount or value of the subject matter, the time expended by the advocate—
(i) where the matter is not complex or opposed such sum as may be reasonable but not less than 45,000
(ii) where the matter is opposed and found to satisfy the criteria set out above, such sum as may reasonable but not less than 100,000
(iii) to present or oppose application for setting aside arbitral award 50,000
B - ADVOCATE AND CLIENT COSTS
As between advocate and client the minimum fee shall be—
(a) the fees prescribed in A above, increased by 50%; or
(b) the fees ordered by the court, increased by 50%; or
(c) the fees agreed by the parties under paragraph 57 of this order increased by 50%; as the case may be, such increase to include all proper attendances on the client and all necessary correspondences.
43. In SC Petition (Appl.) No. E024 of 2023 and Applications Nos. E030, E034 & E038 of 2024 Nairobi Bottlers Limited vs. Mark Ndumia Ndungu and Coca Cola Central, East &West Africa Limited the Supreme Court set out the guiding principles for taxation as follows: -
“[8] This Court, in the case of Fredrick Otieno Outa v Jared Otieno Odoto & 3 Others SC Petition No 6 of 2014; [2023] KESC 75 (KLR) highlighted the following principles to be considered in an application for setting aside a taxation decision:
“(11) A certificate of taxation will be set aside, and a single Judge can only interfere with the taxing officer’s decision on taxation if;
a. there is an error of principle committed by the taxing officer;
b. the fee awarded is shown to be manifestly excessive or is so high as to confine access to the court to the wealthy;(and I may add, conversely, if the award is so manifestly deficient as to amount to an injustice to one party).
c. the court is satisfied that the successful litigant is entitled to fair reimbursement for the costs he has incurred, (and I may add, the award must not be regarded as a punishment of the defeated party but as a recompense to the successful party for the expenses to which he had been subjected by the other party); and
d. the award proposed is so far as practicable, consistent with previous awards in similar cases.
To these general principles, I may add that;
i. There is no mathematical formula to be used by the taxing officer to arrive at a precise figure because each case must be considered and decided on its own peculiar circumstances,
ii. Although the taxing officer exercises unfettered judicial discretion in matters of taxation that discretion must be exercised judicially, not whimsically,
iii. The single Judge will normally not interfere with the decision of the taxing officer merely because the Judge believes he would have awarded a differe nt figure had he been in the taxing officer’s shoes.”
44. The Supreme Court further gave guidance on how to assess instructions fees which forms the crux of this Reference: -
“[9] Bearing these principles in mind, I turn to the reference. Starting with the value of the subject matter. The Taxing Officer handled the issue as follows:
“[9] The last issue for determination is on what really constitutes the value of the subject matter in this case. Counsel for the 1st respondent has submitted at length on this issue and posited that the value of the subject matter is Ksh.8,888,367,426.00. This figure, they submit, was the petitioner’s own calculation hence they ought to be bound by it. In rebuttal, the petitioner has argued that this was merely an approximation of what the petitioner would have incurred in compliance with the final orders of the High Court had the Supreme Court not granted the conservatory orders. According to the Petitioner, the claim before the High Court, Court of Appeal and Supreme Court was on the issue of breach and or violation of consumer rights as enshrined under Article 46 of the Constitution and nothing turned on the value of the subject matter.
[10] I have perused the entire court record, and I must agree with the petitioner that the petition before the High Court did not have any quantifiable value. The footprints of Kshs.8,888,367,426.00 found their way in these proceedings at stage of seeking conservatory orders.”
[10] It has to be restated that the genesis of this Reference is a constitutional petition that originated from the High Court through the Court of Appeal up to this Court and concerned the appellant/respondent’s omission in displaying the nutritional value, storage directions, customer care email address and phone number on the Coca Cola, Fanta, Krest, Stoney and Sprite glass bottles as it does on its plastic bottles and how this constituted a violation of consumer rights under Article 46(1)(a), (b) and (c) of the Constitution. The High Court and the Court of Appeal decided in favour of the 1 st respondent and issued declarations that the appellant/respondent’s omission constituted a violation of the consumer rights under Article 46(1)(a), (b) and (c) of the Constitution and that the omission amounted to discrimination and unequal treatment of consumers contrary to Article 27(2), (4) and (5) of the Constitution. The Court issued a mandatory injunction directing the appellant/respondent to provide the nutritional information storage directions and customer care mobile number and email address on all of their Coca Cola, Fanta, Krest, Stoney and Sprite brands glass bottles within six (6) months of the date of delivery of the High Court judgment.
[11] Therefore, I agree with the Taxing Officer that the subject matter is not discernible either from the Judgment or settled consent and the figure put forward of Kshs.8.8 billion emanated from the conservatory proceedings. It is thus my finding that the Taxing Officer was well guided by the Court’s decision in Kenya Airports Authority v Otieno Ragot and Company Advocates (Petition E011 of 2023) [2024] KESC 44 (KLR) where the Court held as follows:
“57. Whilst the determination of the value of subject matter from a judgment and settlement of the parties is quite straight forward, the determination from pleadings is not. The determination of the value of the subject matter, may be difficult, for instance, where the pleadings/suit is struck out at a preliminary stage, such as in this case, and the value can only be determined/ascertained upon the conclusion of a trial. …..
59. We are of a considered opinion that a claim in a suit which is struck out at the preliminary stage does not ipso facto render that claim or amount pleaded therein without more the value of the subject matter. The position still remains that the amount therein has not been ascertained or determined, and as such, it cannot be applied as the value of a subject matter in a disputed taxation. The application of such a claim or amount as the value of the subject matter would go against the rationale that the fees/costs paid to an advocate and a successful party should be reasonable.” [Emphasis added]
[12] Now turning to item No. 1 being the instruction fees, I am guided by Paragraph 9 (2) of the Third Schedule to the effect that the fees allowed for instructions to appeal or to oppose an appeal is the discretion of the taxing officer and shall be such sum as he shall consider reasonable, having regard to the amount involved in the appeal, its nature, importance an
[...truncated]