REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO
MISCELLANEOUS APPLICATION NO. E076 OF 2025
REBECCA CHEPKOECH KAMOING' ....................................................... APPLICANT
VERSUS
W.K NGENOH T/A W.K NGENOH LESSAN
& COMPANY ADVOCATES ..................................................................... RESPONDENT
RULING
A. INTRODUCTION.
1. This is a Reference brought by the Applicant, Rebecca Chepkoech Kamoing, by way of Chamber Summons dated 30th October 2025.
2. The Applicant is aggrieved by the decision of the Hon. Deputy Registrar, dated 21st October 2025, taxing the Respondent's Advocate-Client Bill of Costs dated 10th June 2025 at a total of Kshs 871,020/=, in Kericho High Court Miscellaneous Application No. E029 of 2025.
3. The Applicant seeks orders setting aside the decision and that the same be taxed or assessed afresh by this Court or, in the alternative, be remitted for re-taxation by a different taxing officer. The Respondent opposes the same and asks this Court to instead enhance his fees.
B. BACKGROUND
4. The Applicant avers that she is the widow and Administratrix of the estate of her late husband, Aaron Kiplangat Kamoing alias Aaron Kiplangat Arap Kamoing, in respect of which she obtained a Grant of Letters of Administration Intestate in Kericho High Court Succession Cause No. E032 of 2024, issued on 25th November 2024.
5. The Respondent is an Advocate of the High Court, W.K Ngenoh Lessan, practising as W.K Ngenoh Lessan & Company Advocates, and was instructed by the Applicant to conduct the succession proceedings. His supporting affidavit indicates an estate value of an estimated Kshs 200,000,000. The Applicant contends that the true value of the estate is Kshs 26,081,185/=.
6. The Applicant's case is that she had informed the Respondent of the correct value of the estate. She further avers that she paid the Respondent a total of Kshs 730,475/=, in instalments, as evidenced by an M-Pesa statement annexed to her affidavit, which she maintains was in full settlement of his professional fees.
7. The Respondent filed an Advocate-Client Bill of Costs dated 10th June 2025 in Misc. Application No. E029 of 2025, claiming a total of Kshs 3,910,096/=, computed principally on a valuation of the estate at Kshs 200,000,000/=, (Kshs 2,040,000/= being the instruction fee, increased by one half Kshs 1,020,000/=, together with drawing and attendance fees, confirmation fees of Kshs 200,000/=, disbursements and VAT.
8. In her Ruling delivered on 21st October 2025, the Deputy Registrar made the following material findings:
1. The Kshs 200,000,000/= estimate pleaded by the Respondent was not shown to have been arrived at on any principled basis, whereas the valuation report in court had been prepared by a certified valuer who attached his practising certificate, which the Respondent had not controverted with a competing valuation;
2. On the question of whether the parties had agreed on fees, the Applicant denied any such agreement and the Respondent adduced no proof of one, and accordingly found that no agreement on legal fees existed;
3. On the question of sums already paid, Kshs 100,000/= was conceded, while discounting the Applicant's M-Pesa statement for want of a certificate of electronic production under the Evidence Act; the Taxing Officer nonetheless found that the Kshs 100,000 should be deducted from the figure arrived at after taxation; and applying the discretion recognised in Joreth Ltd v Kigano & Associates [2002] 1 EA 92 and noting that Schedule 10, paragraph 1 does not prescribe specific amounts per band and having regard to the work done and the uncontested nature of the cause, she opined that instruction fees of Kshs 500,000/=, increased by one half (Kshs 250,000/=), plus VAT of Kshs 80,000/= which totaled to Kshs 830,000/= was sufficient.
9. The Taxing Officer then taxed the remaining items of the Bill:
Items 3 and 6 (drawing fees) were allowed in full at Kshs 6,800/= and Kshs 3,600/= respectively;Items 4, 5 and 7 (attendances) were taxed down to Kshs 500/= each;Item 7B was taxed at Kshs 1,000/=; item 8 (confirmation fees, claimed at Kshs 200,000/=) was taxed down to Kshs 15,000/=; item 9 was taxed at Kshs 1,900/=;Items 10 and 11 (disbursements for searches) were taxed off entirely for want of proof of actual expenditure. Items 12 to 15 were allowed as claimed, totalling Kshs 11,220/=.
The Bill of Costs was thus taxed at a grand total of Kshs 871,020/=.
10. Aggrieved, the Applicant filed the present reference, contending, in summary, that:
The sum awarded is excessive and punitive for a non-contentious succession matter valued at Kshs 26,081,185/=. The Deputy Registrar failed to apply the correct scale of fees under Schedule 10, Paragraph 1(a) of the Advocates (Remuneration) Order applicable to probate and administration matters. The Taxing Officer disregarded the Applicant's submissions and comparative authorities and erred in failing to take into account the sum of Kshs 730,475/= paid by the Applicant to the Respondent, and to deduct the same from the final computation.
C. THE RESPONDENT.
11. The Respondent opposed the same through a replying affidavit sworn on 17th November 2025. He states the same is bad in law, incompetent, premature, brought without clean hands, and barred by inordinate delay, and denies that the parties had agreed on fees.
12. In written submissions dated 10th January 2026, the Respondent reiterated his objection, asserting inordinate delay to a decision he describes as having been delivered on the 7th May 2025, and in his replying affidavit places it on 7th May 2020, a date inconsistent with the Ruling itself, which is dated, signed and delivered on 21st October 2025.
13. On the merits, the Respondent submitted that the Taxing Officer had in fact been lenient in taxing off the greater part of his claimed bill; that the Applicant's valuation report was misconceived and ought to be disregarded; that on inquiry into current market prices the estate would today be worth approximately Kshs 276,000,000/=, and that applying First American Bank of Kenya v Shah [2002] 1 EA 64 and Joreth Ltd v Kigano & Associates [2002] 1 EA 92 , this Court ought not to interfere with the taxing officer's exercise of discretion. He prayed that this Court instead enhance the instruction fees proportionately to the Kshs 200,000,000/= (or higher) valuation appearing in the succession pleadings.
D. ISSUES FOR DETERMINATION.
14. The following issues arise for determination:
1. Whether the instruction fees awarded are otherwise so excessive or so inadequate, as to amount to an erroneous estimate warranting interference;
3. Whether the Taxing Officer erred in failing to give effect, in her final computation, to her own finding.
E. THE LAW
15. The principles of setting aside the decisions of the Taxing Master were well established in the cases of Premchand Raichand Limited & Another v Quarry Services of East Africa Limited and Another [1972] E.A 162, First American Bank of Kenya vs Shah and Others (2002) EA 64 and Joreth Ltd v Kigano and Associates (2002) 1 EA 92 .
These include;
1. That there was an error of principle.
2. The fee awarded was manifestly excessive or is so high as to confine access to the court to the wealthy.
3. That the successful litigant ought to be fairly reimbursed for the costs he has incurred.
4. That so far as practicable there should be consistency in the award.
16. The court will not normally interfere with the taxing master’s ruling simply because it thinks it would have awarded a different figure had it been the one taxing the bill. The court can interfere if it is proved that the amount taxed was manifestly excessive or low; and the court can interfere if there is proof that the taxing officer followed a wrong principle in reaching his decision.
17. I am alive to the fact that the discretion of the Taxing Officer should not be interfered with unless it appears that the Taxing Officer is wrong in principle or has not exercised his/her discretion judicially and has exercised it improperly, as in KANU National Elections Board & 2 others v Salah Yakub Farah [2018] eKLR.
18. In the case of Nyangito & Co. Advocates v Doinyo Lessos Creameries Ltd [2014] eKLR, Odunga J emphasised that the circumstances under which a Judge of the High Court interferes with the taxing officer’s exercise of discretion are now well known. These principles are:-
“1). That 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 inference that it was based on an error of principle;
2). It would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors, according to the Remuneration Order itself. Some of the relevant factors to be taken into account include the nature and importance of the cause or matter, the amount or value of the subject matter involved; the interests of the parties, the general conduct of the proceedings and any direction by the trial Judge;
3). 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 reassessment unless the Judge is satisfied that the error cannot materially have affected the assessment and the court is not entitled to upset a taxation because in its opinion."
F. ANALYSIS AND DETERMINATION.
19. As to the quantum of instruction fees otherwise awarded, the Taxing Officer expressly considered the work done, the uncontested nature of the cause, and the absence of specific banding under Schedule 10, of the Advocates (Remuneration) Order, 2022, and exercised her discretion, guided by Joreth Ltd v Kigano & Associates [2002] 1 EA 92 , to assess instruction fees of Kshs 500,000/=, increased by one half.
20. That assessment was made by reference to the Applicant's own certified valuation of the estate, which the Taxing Officer was entitled to prefer over the unsubstantiated Kshs 200,000,000/= pleaded figure. Neither party has demonstrated, with a precise comparative computation, that this figure is so manifestly excessive or so manifestly inadequate as to amount to an entirely erroneous estimate. This Court declines to interfere with it.
21. The Respondent's invitation to this Court to enhance his instruction fees, whether to the Kshs 200,000,000/= pleaded figure or to the Kshs 276,000,000/= figure advanced for the first time in his submissions, cannot be entertained on this Reference. A prayer for affirmative relief cannot be sneaked into submissions responding to the Applicant's own Reference. Secondly , and in any event, the Kshs 276,000,000/= 'current market rate' valuation was never placed before the Taxing Officer and is unsupported by any valuation report.
22. Thirdly , the Taxing Officer's preference for the Applicant's certified valuation report over the unsubstantiated pleaded estimate was a proper exercise of her fact-finding function, which the Respondent has not shown to be erroneous in principle. The prayer for enhancement is accordingly rejected.
23. The Deputy Registrar, having weighed the competing positions on sums already paid, made a clear and unequivocal finding that Kshs 100,000/= - being the sum the Respondent himself conceded, should be deducted from the figure arrived at after taxation.
24. That finding has not been challenged by the Respondent, who does not deny having received at least that sum. Yet, as the reconciliation set out above demonstrates, the total of Kshs 871,020/= is arrived at purely by summing the individually taxed items, without any deduction of the Kshs 100,000/= at all.
25. Such an internal inconsistency is an error properly correctable on reference. It is unnecessary to remit the matter for this narrow, arithmetic purpose. This Court will vary the costs accordingly.
26. This Court notes that the Applicant's broader contention, that the full Kshs 730,475/= reflected in her M-Pesa statement ought to have been deducted, was considered and rejected by the taxing officer on the basis that the statement lacked a certificate of electronic production under the Evidence Act.
The Applicant has not, in her Reference, specifically demonstrated that this evidentiary finding was erroneous in principle, and this Court declines to disturb it. The correction made in this Ruling is confined to giving effect to the undisputed finding as to the Kshs 100,000/=.
G. ORDERS.
27. For the foregoing reasons, this Court makes the following orders:
a.The reference partially succeeds. The certificate of costs issued in Kericho High Court Miscellaneous Application No. E029 of 2025 is varied by deducting Kshs 100,000/=, in accordance with the Deputy Registrar's own finding, from the certified sum of Kshs 871,020/=, resulting in a corrected total of Kshs 771,020/= .
b. Save as varied in order (1) above, the decision of the Deputy Registrar dated 21st October 2025 is otherwise upheld.
c. Each party to bear their own cost.
T.A ODERA
JUDGE
14.7.26
DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMSW PLATFORM ON THIS 14TH DAY OF JULY 2026, IN THE PRESENCE OF :
CA – BUSIENEI
NGENO FOR APPLICANT
N/A FOR RESPONDENT :
IN THE HIGH COURT OF KENYA AT KERICHO
MISCELLANEOUS APPLICATION NO. E076 OF 2025
REBECCA CHEPKOECH KAMOING' ....................................................... APPLICANT
VERSUS
W.K NGENOH T/A W.K NGENOH LESSAN
& COMPANY ADVOCATES ..................................................................... RESPONDENT
RULING
A. INTRODUCTION.
1. This is a Reference brought by the Applicant, Rebecca Chepkoech Kamoing, by way of Chamber Summons dated 30th October 2025.
2. The Applicant is aggrieved by the decision of the Hon. Deputy Registrar, dated 21st October 2025, taxing the Respondent's Advocate-Client Bill of Costs dated 10th June 2025 at a total of Kshs 871,020/=, in Kericho High Court Miscellaneous Application No. E029 of 2025.
3. The Applicant seeks orders setting aside the decision and that the same be taxed or assessed afresh by this Court or, in the alternative, be remitted for re-taxation by a different taxing officer. The Respondent opposes the same and asks this Court to instead enhance his fees.
B. BACKGROUND
4. The Applicant avers that she is the widow and Administratrix of the estate of her late husband, Aaron Kiplangat Kamoing alias Aaron Kiplangat Arap Kamoing, in respect of which she obtained a Grant of Letters of Administration Intestate in Kericho High Court Succession Cause No. E032 of 2024, issued on 25th November 2024.
5. The Respondent is an Advocate of the High Court, W.K Ngenoh Lessan, practising as W.K Ngenoh Lessan & Company Advocates, and was instructed by the Applicant to conduct the succession proceedings. His supporting affidavit indicates an estate value of an estimated Kshs 200,000,000. The Applicant contends that the true value of the estate is Kshs 26,081,185/=.
6. The Applicant's case is that she had informed the Respondent of the correct value of the estate. She further avers that she paid the Respondent a total of Kshs 730,475/=, in instalments, as evidenced by an M-Pesa statement annexed to her affidavit, which she maintains was in full settlement of his professional fees.
7. The Respondent filed an Advocate-Client Bill of Costs dated 10th June 2025 in Misc. Application No. E029 of 2025, claiming a total of Kshs 3,910,096/=, computed principally on a valuation of the estate at Kshs 200,000,000/=, (Kshs 2,040,000/= being the instruction fee, increased by one half Kshs 1,020,000/=, together with drawing and attendance fees, confirmation fees of Kshs 200,000/=, disbursements and VAT.
8. In her Ruling delivered on 21st October 2025, the Deputy Registrar made the following material findings:
1. The Kshs 200,000,000/= estimate pleaded by the Respondent was not shown to have been arrived at on any principled basis, whereas the valuation report in court had been prepared by a certified valuer who attached his practising certificate, which the Respondent had not controverted with a competing valuation;
2. On the question of whether the parties had agreed on fees, the Applicant denied any such agreement and the Respondent adduced no proof of one, and accordingly found that no agreement on legal fees existed;
3. On the question of sums already paid, Kshs 100,000/= was conceded, while discounting the Applicant's M-Pesa statement for want of a certificate of electronic production under the Evidence Act; the Taxing Officer nonetheless found that the Kshs 100,000 should be deducted from the figure arrived at after taxation; and applying the discretion recognised in Joreth Ltd v Kigano & Associates [2002] 1 EA 92 and noting that Schedule 10, paragraph 1 does not prescribe specific amounts per band and having regard to the work done and the uncontested nature of the cause, she opined that instruction fees of Kshs 500,000/=, increased by one half (Kshs 250,000/=), plus VAT of Kshs 80,000/= which totaled to Kshs 830,000/= was sufficient.
9. The Taxing Officer then taxed the remaining items of the Bill:
Items 3 and 6 (drawing fees) were allowed in full at Kshs 6,800/= and Kshs 3,600/= respectively;Items 4, 5 and 7 (attendances) were taxed down to Kshs 500/= each;Item 7B was taxed at Kshs 1,000/=; item 8 (confirmation fees, claimed at Kshs 200,000/=) was taxed down to Kshs 15,000/=; item 9 was taxed at Kshs 1,900/=;Items 10 and 11 (disbursements for searches) were taxed off entirely for want of proof of actual expenditure. Items 12 to 15 were allowed as claimed, totalling Kshs 11,220/=.
The Bill of Costs was thus taxed at a grand total of Kshs 871,020/=.
10. Aggrieved, the Applicant filed the present reference, contending, in summary, that:
The sum awarded is excessive and punitive for a non-contentious succession matter valued at Kshs 26,081,185/=. The Deputy Registrar failed to apply the correct scale of fees under Schedule 10, Paragraph 1(a) of the Advocates (Remuneration) Order applicable to probate and administration matters. The Taxing Officer disregarded the Applicant's submissions and comparative authorities and erred in failing to take into account the sum of Kshs 730,475/= paid by the Applicant to the Respondent, and to deduct the same from the final computation.
C. THE RESPONDENT.
11. The Respondent opposed the same through a replying affidavit sworn on 17th November 2025. He states the same is bad in law, incompetent, premature, brought without clean hands, and barred by inordinate delay, and denies that the parties had agreed on fees.
12. In written submissions dated 10th January 2026, the Respondent reiterated his objection, asserting inordinate delay to a decision he describes as having been delivered on the 7th May 2025, and in his replying affidavit places it on 7th May 2020, a date inconsistent with the Ruling itself, which is dated, signed and delivered on 21st October 2025.
13. On the merits, the Respondent submitted that the Taxing Officer had in fact been lenient in taxing off the greater part of his claimed bill; that the Applicant's valuation report was misconceived and ought to be disregarded; that on inquiry into current market prices the estate would today be worth approximately Kshs 276,000,000/=, and that applying First American Bank of Kenya v Shah [2002] 1 EA 64 and Joreth Ltd v Kigano & Associates [2002] 1 EA 92 , this Court ought not to interfere with the taxing officer's exercise of discretion. He prayed that this Court instead enhance the instruction fees proportionately to the Kshs 200,000,000/= (or higher) valuation appearing in the succession pleadings.
D. ISSUES FOR DETERMINATION.
14. The following issues arise for determination:
1. Whether the instruction fees awarded are otherwise so excessive or so inadequate, as to amount to an erroneous estimate warranting interference;
3. Whether the Taxing Officer erred in failing to give effect, in her final computation, to her own finding.
E. THE LAW
15. The principles of setting aside the decisions of the Taxing Master were well established in the cases of Premchand Raichand Limited & Another v Quarry Services of East Africa Limited and Another [1972] E.A 162, First American Bank of Kenya vs Shah and Others (2002) EA 64 and Joreth Ltd v Kigano and Associates (2002) 1 EA 92 .
These include;
1. That there was an error of principle.
2. The fee awarded was manifestly excessive or is so high as to confine access to the court to the wealthy.
3. That the successful litigant ought to be fairly reimbursed for the costs he has incurred.
4. That so far as practicable there should be consistency in the award.
16. The court will not normally interfere with the taxing master’s ruling simply because it thinks it would have awarded a different figure had it been the one taxing the bill. The court can interfere if it is proved that the amount taxed was manifestly excessive or low; and the court can interfere if there is proof that the taxing officer followed a wrong principle in reaching his decision.
17. I am alive to the fact that the discretion of the Taxing Officer should not be interfered with unless it appears that the Taxing Officer is wrong in principle or has not exercised his/her discretion judicially and has exercised it improperly, as in KANU National Elections Board & 2 others v Salah Yakub Farah [2018] eKLR.
18. In the case of Nyangito & Co. Advocates v Doinyo Lessos Creameries Ltd [2014] eKLR, Odunga J emphasised that the circumstances under which a Judge of the High Court interferes with the taxing officer’s exercise of discretion are now well known. These principles are:-
“1). That 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 inference that it was based on an error of principle;
2). It would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors, according to the Remuneration Order itself. Some of the relevant factors to be taken into account include the nature and importance of the cause or matter, the amount or value of the subject matter involved; the interests of the parties, the general conduct of the proceedings and any direction by the trial Judge;
3). 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 reassessment unless the Judge is satisfied that the error cannot materially have affected the assessment and the court is not entitled to upset a taxation because in its opinion."
F. ANALYSIS AND DETERMINATION.
19. As to the quantum of instruction fees otherwise awarded, the Taxing Officer expressly considered the work done, the uncontested nature of the cause, and the absence of specific banding under Schedule 10, of the Advocates (Remuneration) Order, 2022, and exercised her discretion, guided by Joreth Ltd v Kigano & Associates [2002] 1 EA 92 , to assess instruction fees of Kshs 500,000/=, increased by one half.
20. That assessment was made by reference to the Applicant's own certified valuation of the estate, which the Taxing Officer was entitled to prefer over the unsubstantiated Kshs 200,000,000/= pleaded figure. Neither party has demonstrated, with a precise comparative computation, that this figure is so manifestly excessive or so manifestly inadequate as to amount to an entirely erroneous estimate. This Court declines to interfere with it.
21. The Respondent's invitation to this Court to enhance his instruction fees, whether to the Kshs 200,000,000/= pleaded figure or to the Kshs 276,000,000/= figure advanced for the first time in his submissions, cannot be entertained on this Reference. A prayer for affirmative relief cannot be sneaked into submissions responding to the Applicant's own Reference. Secondly , and in any event, the Kshs 276,000,000/= 'current market rate' valuation was never placed before the Taxing Officer and is unsupported by any valuation report.
22. Thirdly , the Taxing Officer's preference for the Applicant's certified valuation report over the unsubstantiated pleaded estimate was a proper exercise of her fact-finding function, which the Respondent has not shown to be erroneous in principle. The prayer for enhancement is accordingly rejected.
23. The Deputy Registrar, having weighed the competing positions on sums already paid, made a clear and unequivocal finding that Kshs 100,000/= - being the sum the Respondent himself conceded, should be deducted from the figure arrived at after taxation.
24. That finding has not been challenged by the Respondent, who does not deny having received at least that sum. Yet, as the reconciliation set out above demonstrates, the total of Kshs 871,020/= is arrived at purely by summing the individually taxed items, without any deduction of the Kshs 100,000/= at all.
25. Such an internal inconsistency is an error properly correctable on reference. It is unnecessary to remit the matter for this narrow, arithmetic purpose. This Court will vary the costs accordingly.
26. This Court notes that the Applicant's broader contention, that the full Kshs 730,475/= reflected in her M-Pesa statement ought to have been deducted, was considered and rejected by the taxing officer on the basis that the statement lacked a certificate of electronic production under the Evidence Act.
The Applicant has not, in her Reference, specifically demonstrated that this evidentiary finding was erroneous in principle, and this Court declines to disturb it. The correction made in this Ruling is confined to giving effect to the undisputed finding as to the Kshs 100,000/=.
G. ORDERS.
27. For the foregoing reasons, this Court makes the following orders:
a.The reference partially succeeds. The certificate of costs issued in Kericho High Court Miscellaneous Application No. E029 of 2025 is varied by deducting Kshs 100,000/=, in accordance with the Deputy Registrar's own finding, from the certified sum of Kshs 871,020/=, resulting in a corrected total of Kshs 771,020/= .
b. Save as varied in order (1) above, the decision of the Deputy Registrar dated 21st October 2025 is otherwise upheld.
c. Each party to bear their own cost.
T.A ODERA
JUDGE
14.7.26
DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMSW PLATFORM ON THIS 14TH DAY OF JULY 2026, IN THE PRESENCE OF :
CA – BUSIENEI
NGENO FOR APPLICANT
N/A FOR RESPONDENT :