1. For determination is the Plaintiff’s/Applicant's Chamber Summons dated 13th April 2026, brought under Paragraph 11 of the Advocates (Remuneration) Order, Order 42 Rule 6, Order 22 and Order 50 of the Civil Procedure Rules, and Sections 1A, 1B and 3A of the Civil Procedure Act.
2. The Applicant seeks for :
i. SPENT
ii. Stay of execution pending determination of the reference
iii. Enlargement of time to file a reference against the ruling of the Taxing Officer delivered on 4th August 2025
iv. An order deeming the reference duly filed
v. Setting aside of the Taxing Officer's decision
vi. Remittal of the 4th and 5th Respondents' party-and-party Bill of Costs dated 24th July 2023 for taxation before a different Taxing Officer
vii. Costs of the application
3. The motion is founded upon the grounds on its face and the supporting affidavit sworn by George Mahugu, learned counsel having conduct of the matter for the Applicant. Counsel deposes that the Bill of Costs was taxed at Kshs.1,950,432; that the Applicant's first reference, filed within time, was struck out on 12th March 2026; that the time prescribed for a fresh reference had consequently lapsed; and that the impugned taxation is excessive, particularly in respect of item 1 on instruction fees and item 2 on getting-up fees, because the value of the suit properties was not ascertainable from the record.
4. The 4th and 5th Respondents oppose the application through Grounds of Opposition dated 21st May 2026. They contend, first, that the Court lacks jurisdiction to entertain a second reference arising from the same taxation ruling because the matter is res judicata and because the Court would thereby sit on appeal over its ruling of 12th March 2026. Secondly, they state that the fresh reference was filed outside the mandatory timelines in paragraph 11 of the Advocates Remuneration Order and that the application for enlargement of time rests upon misrepresentation. Thirdly, they point out that the Applicant had sought and obtained leave to appeal against the ruling of 12th March 2026, such that his remedy lay in the appellate court. In their view, the motion is a gross abuse of the process of the Court.
5. The Court has reviewed the Chamber Summons, the supporting affidavit, the Grounds of Opposition, the taxation ruling, the party-and-party Bill of Costs, the prior reference and ruling delivered on 12th March 2026, the parties' taxation material, the execution process and the subsequent applications for interim stay. The later stay motion cannot enlarge the substantive prayers in the Chamber Summons dated 13th April 2026, but the Court takes judicial notice of the execution steps only for purposes of the prayer for preservation and prejudice.
6. The record discloses that the underlying suit concerned Nairobi/Block 63/782 and Nairobi/Block 63/783. The suit was dismissed with costs to the 4th and 5th Defendants on 12th June 2023. Their party-and-party Bill of Costs claimed Kshs.2,300,000 under item 1 as instruction fees and Kshs.667,000 under item 2 as getting-up fees. The Bill stated that each parcel was worth Kshs.15,000,000 at the time the suit was filed and referred, additionally, to an estimated current aggregate value of Kshs.50,000,000. The face of the Bill records a grand total of Kshs.3,649,073.
7. By a ruling delivered on 4th August 2025, the Taxing Officer stated that item 1 was taxed as drawn because the amount was reasonable and within the applicable law; item 2 was similarly taxed as drawn at one-third of the instruction fee; grouped numerous other items by reference to paragraphs under Schedule VI; and ultimately awarded Kshs.1,950,432. The ruling cited, inter alia, Joreth Limited v Kigano & Associates, Premchand Raichand Limited & another v Quarry Services of East Africa Limited (No. 3), Republic v Minister for Agriculture & 2 others ex parte Samuel Muchiri W'Njuguna & 6 others, and First American Bank of Kenya v Shah & others.
8. The Applicant's first reference was the Chamber Summons dated 12 August 2025. The Court, in its ruling delivered on 12th March 2026, rejected the objection founded solely upon failure to request reasons because the reasons were already contained on the face of the taxation ruling. It nevertheless found that the reference mounted an omnibus challenge and did not clearly identify the particular taxed items or grounds of objection. On that basis, and without determining whether items 1 and 2 were correctly taxed, the Court struck out the Chamber Summons with capped costs of Kshs.5,000. The Applicant lodged a Notice of Appeal dated 19th March 2026 but, by a letter dated 10th April 2026, requested the Deputy Registrar to mark it as withdrawn. The present motion was lodged on 13th April 2026.
Issues for determination
9. Having considered the rival material, the issues that fall for determination are: (a) whether the fresh reference is barred by res judicata, functus officio or amounts to an abuse of the court process; (b) whether time ought to be enlarged and the reference deemed duly filed; (c) whether the Applicant has established a basis for interference with the taxation; and (d) who should bear the costs of the motion.
Whether the fresh reference is barred by res judicata, functus officio or abuse of process
10. The doctrine of res judicata is codified in section 7 of the Civil Procedure Act. It bars a court from trying a suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, litigating under the same title, before a competent court, and has been heard and finally decided.
11. The Court of Appeal in Independent Electoral and Boundaries Commission v Maina Kiai & 5 others [2017] KECA 105 (KLR) distilled the conjunctive elements of the doctrine: identity of the matter in issue; identity of parties or their privies; litigation under the same title; a competent former court; and a final determination. The Supreme Court, in John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2021] KESC 39 (KLR), affirmed that res judicata promotes finality and protects the authority of judicial decisions, but must be applied only where its legal ingredients are satisfied.
12. There is identity of parties and subject matter between the two references. The decisive question, however, is whether the objections now advanced against items 1 and 2 were heard and finally determined on their merits. They were not. The order of 12th March 2026 was one striking out the former Chamber Summons because its pleading did not identify the challenged items. Paragraphs 20 to 22 of that ruling expressly show that the Court could not apply the governing taxation principles to any specified item. No finding was made on whether the instruction fee, the getting-up fee, or the aggregate taxed sum was correct.
13. A striking-out order for curable incompetence ordinarily leaves the merits undecided. That distinction is substantive, not semantic. The decision of the Court of Appeal in D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another [1982] KLR 1 underscores the exceptional and summary character of striking out and the court's duty to preserve matters capable of lawful adjudication. More directly, the High Court in Guchu & another v Andrew & Steve Advocates [2025] KEHC 12872 (KLR) recognized, in the context of a taxation reference, that striking out an incompetent reference may pave the way for a fresh reference properly filed. That reasoning accords with section 7 of the Civil Procedure Act because there is no final merit decision to found the bar.
14. The Court is not being asked to review or sit on appeal over the ruling of 12th March 2026. The Applicant accepts that ruling and has cured the defect it identified by specifying items 1 and 2 and the asserted errors of principle. The Court has also verified the letter dated 10th April 2026 withdrawing the Notice of Appeal. There is no evidence before the Court of a subsisting appeal whose jurisdiction would be usurped.
15. Equally the Court is not functus officio in respect of a controversy it never determined. The principle of functus officio protects final decisions from alteration by the court that made them; it does not prevent adjudication of a competent, fresh proceeding where the former proceeding ended without a determination of the merits. The objection founded upon res judicata and functus officio therefore fails.
16. That conclusion does not confer an unrestricted licence to re-litigate. Repetitive applications calculated to evade or overturn final decisions may be stayed or struck out as an abuse of process. Here, however, the fresh motion was filed one month after the striking-out ruling, identifies the precise items omitted from the first reference, and followed withdrawal of the proposed appeal. On the present record, the sequence reflects an attempt to regularize the challenge, not collateral impeachment of a final merits decision. The plea of abuse of process is not established.
Whether time ought to be enlarged
17. Paragraph 11(1) and (2) of the Advocates Remuneration Order prescribes fourteen days for notice of objection and a further fourteen days, after receipt of reasons, for filing a reference. Paragraph 11(4) expressly gives the High Court discretion to enlarge either period, even after expiry. The existence of jurisdiction to enlarge time is therefore beyond contest.
18. The discretion is judicial. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR), the Supreme Court stated that extension of time is equitable, not a right; the applicant bears the burden of laying a basis; delay must be explained to the Court's satisfaction; and the Court must consider prejudice and the circumstances of each case. The Court of Appeal similarly explained in County Executive of Kisumu v County Government of Kisumu & 8 others [2017] KECA 40 (KLR) that the length and reason for delay, prospects of the intended proceeding, prejudice, and the importance of compliance with timelines are material considerations.
19. The taxation ruling was delivered on 4th August 2025. The Applicant filed the first reference on 12th August 2025, within fourteen days. That reference remained pending until 12th March 2026. Although the present motion could not inherit the timeliness of a pleading that had been struck out, the initial prompt filing is relevant to diligence. After the striking-out order, the Applicant first signaled an appeal on 19th March 2026, withdrew that course on 10th April 2026, and filed the fresh motion three days later. The operative delay after the earlier ruling is about one month.
20. The supporting affidavit is inelegantly drawn and the assertion that Counsel was unaware of the ruling is neither particularized nor satisfactory, standing alone. Nevertheless, the documentary chronology supplies the explanation omitted in the prose: a timely first reference, an abortive appellate step, withdrawal, and prompt filing of the corrected reference. The Court does not endorse the procedural oscillation, but finds that the delay is not inordinate and has been substantially explained by the record.
21. The Respondents have a legitimate entitlement to enjoy their costs without indefinite obstruction. That prejudice can be addressed by expedition, costs and narrowly confining reconsideration to the challenged items. Conversely, refusing enlargement would shut the Applicant out from any merit examination despite his initial timely challenge and notwithstanding an apparent internal inconsistency in the taxation ruling. The balance of justice favours enlargement. Time is accordingly enlarged and the reference embodied in the Chamber Summons dated 13th April 2026 is deemed duly filed.
Whether the taxation should be disturbed
22. The jurisdiction on a reference is supervisory and circumscribed. In Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] KECA 325 (KLR), the Court of Appeal held that a judge will not normally interfere with the Taxing Officer's discretion unless the officer erred in principle. In Premchand Raichand Limited & another v Quarry Services of East Africa Limited (No. 3) [1972] EA 162, the former Court of Appeal for East Africa emphasized fair reimbursement, reasonable access to justice, proper professional remuneration, consistency, and non-interference merely because the judge might have reached a different figure. In First American Bank of Kenya v Shah & others [2002] 1 EA 64 it is further explained that taking irrelevant factors into account, omitting relevant factors, or arriving at a manifestly excessive or low award may disclose an error of principle.
23. As to instruction fees, the binding formulation in Joreth Limited v Kigano & Associates (Civil Appeal 66 of 1999) [2002] KECA 153 (KLR) is that the value of the subject matter is first to be determined from the pleadings, judgment or settlement. If it is not ascertainable from those sources, the Taxing Officer may exercise discretion, taking into account the nature and importance of the matter, the interests of the parties, the conduct of the proceedings, directions of the trial judge and all relevant circumstances. The discretion is not a power to import an unproved market figure into the pleadings; it is a power to assess a just fee transparently by reference to the recognized factors.
24. The Bill asserted an aggregate value of Kshs.30,000,000 at commencement and a current value of Kshs.50,000,000. Yet the material placed before this Court does not show that either sum was stated in the plaint, found in the judgment, or embodied in a settlement. The Respondents' own submissions acknowledge reliance upon estimated land values outside those primary sources. A current value, more than two decades after instructions were received, could not without more become the value of the subject matter at the time the fee was earned.
25. The Taxing Officer did not state which Advocates Remuneration Order governed the instruction, which pleaded or adjudicated figure supplied the subject value, or, if the value was unascertainable, how the discretionary factors justified Kshs.2,300,000. The conclusion that the amount was 'reasonable and within applicable law' is not an analysis. In Republic v Minister for Agriculture & 2 others ex parte Samuel Muchiri W'Njuguna & 6 others [2006] KEHC 1005 (KLR) the court, stresses, correctly that taxation is a judicial function and that discretion must rest upon rational criteria clearly expressed for the parties to understand.
26. There is a further, material difficulty. Item 1 was claimed at Kshs.2,300,000 and item 2 at Kshs.667,000. The Taxing Officer stated that both were taxed as drawn. Those two items alone total Kshs.2,967,000, yet the global award was Kshs.1,950,432. The ruling neither records the amount taxed off each item nor supplies a reconciliation explaining how an aggregate, lower than the two expressly allowed items was reached. That is not a mere typographical infelicity. It makes the operative taxation impossible to audit, extract or enforce with confidence.
27. The Court is alive to Machira & Company Advocates v Arthur K. Magugu & another [2012] KECA 245 (KLR), which requires an objector to specify the items challenged and generally to follow the procedure in paragraph 11. Unlike the first reference, the present application specifically challenges item 1 and the consequential item 2 and seeks enlargement under paragraph 11(4). The face of the taxation ruling contains the Taxing Officer's stated reasons, such as they are. As the Court already held in its ruling of 12th March 2026, a further ritual request for the same reasons would serve no useful purpose. The present reference is therefore properly delimited.
28. Item 2 is derivative: under the applicable Schedule VI, getting-up fees are calculated by reference to the instruction fee where the conditions for such fees are met. Once the basis of item 1 cannot stand, item 2 and the final total necessarily require reconsideration. However, the Applicant has not properly challenged the remaining individual items. The Court will not convert a limited reference into a re-hearing of the entire Bill.
29. The appropriate order is not for this Court to select a figure in the first instance. The taxing jurisdiction should be exercised afresh by a Taxing Officer upon the correct principles and a reasoned computation. To preserve both impartiality and appearance of fairness, and because the impugned ruling must be reconstructed arithmetically, the reassessment shall be undertaken by a different Taxing Officer.
30. For avoidance of doubt, the fresh taxation shall be confined to: item 1; item 2 as consequential upon item 1; and recalculation of the final amount allowed after incorporating the amounts already taxed on all unchallenged items. The Taxing Officer shall determine the remuneration order applicable when the relevant instruction was received; determine value from the pleadings, judgment or settlement, if ascertainable; and, if it is not ascertainable, assess a just instruction fee through the discretion recognized in Joreth Limited v Kigano & Associates (Civil Appeal 66 of 1999) [2002] KECA 153 (KLR), giving distinct reasons for the factors employed. The marked Bill and resulting total shall clearly show the sums allowed and taxed off.
Costs and disposal
31. Costs follow the event but remain discretionary under section 27 of the Civil Procedure Act. The Applicant succeeds, but the need for enlargement arose from the defective first reference and the present affidavit did not candidly explain every step. The Respondents were entitled to test the competence of the second reference. Justice is served by ordering each side to bear its own costs of the Chamber Summons.
32. In the result, the Court makes the following orders:
a) Time for lodging the fresh reference is enlarged under paragraph 11(4) of the Advocates Remuneration Order, and the reference contained in the Chamber Summons dated 13th April 2026 is deemed duly filed.
b) The taxation ruling delivered on 4th August 2025 is set aside only in respect of item 1 (instruction fees), item 2 (getting-up fees), and the consequential final total.
c) The 4th and 5th Respondents' party-and-party Bill of Costs is remitted to a Taxing Officer other than the officer who delivered the ruling of 4th August 2025 for reassessment strictly in accordance with paragraph 30 of this ruling.
All other unchallenged items shall remain undisturbed, subject only to accurate incorporation in the recomputed total.
d) Pending that limited reassessment, execution founded upon the certificate or warrants derived from the taxation of 4th August 2025 is stayed. The stay shall lapse upon issuance of a fresh certificate of costs following reassessment, unless otherwise lawfully ordered.
e) Each party shall bear its own costs of the Chamber Summons dated 13th April 2026.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17TH DAY OF SEPTEMBER, 2026, VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORM
KENNEDY KANDET
JUDGE
IN THE PRESENCE OF
MAHUGU FOR THE APPLICANT
SHARMA FOR THE RESPONDENT
COURT ASSISTANT: AGGREY
2. The Applicant seeks for :
i. SPENT
ii. Stay of execution pending determination of the reference
iii. Enlargement of time to file a reference against the ruling of the Taxing Officer delivered on 4th August 2025
iv. An order deeming the reference duly filed
v. Setting aside of the Taxing Officer's decision
vi. Remittal of the 4th and 5th Respondents' party-and-party Bill of Costs dated 24th July 2023 for taxation before a different Taxing Officer
vii. Costs of the application
3. The motion is founded upon the grounds on its face and the supporting affidavit sworn by George Mahugu, learned counsel having conduct of the matter for the Applicant. Counsel deposes that the Bill of Costs was taxed at Kshs.1,950,432; that the Applicant's first reference, filed within time, was struck out on 12th March 2026; that the time prescribed for a fresh reference had consequently lapsed; and that the impugned taxation is excessive, particularly in respect of item 1 on instruction fees and item 2 on getting-up fees, because the value of the suit properties was not ascertainable from the record.
4. The 4th and 5th Respondents oppose the application through Grounds of Opposition dated 21st May 2026. They contend, first, that the Court lacks jurisdiction to entertain a second reference arising from the same taxation ruling because the matter is res judicata and because the Court would thereby sit on appeal over its ruling of 12th March 2026. Secondly, they state that the fresh reference was filed outside the mandatory timelines in paragraph 11 of the Advocates Remuneration Order and that the application for enlargement of time rests upon misrepresentation. Thirdly, they point out that the Applicant had sought and obtained leave to appeal against the ruling of 12th March 2026, such that his remedy lay in the appellate court. In their view, the motion is a gross abuse of the process of the Court.
5. The Court has reviewed the Chamber Summons, the supporting affidavit, the Grounds of Opposition, the taxation ruling, the party-and-party Bill of Costs, the prior reference and ruling delivered on 12th March 2026, the parties' taxation material, the execution process and the subsequent applications for interim stay. The later stay motion cannot enlarge the substantive prayers in the Chamber Summons dated 13th April 2026, but the Court takes judicial notice of the execution steps only for purposes of the prayer for preservation and prejudice.
6. The record discloses that the underlying suit concerned Nairobi/Block 63/782 and Nairobi/Block 63/783. The suit was dismissed with costs to the 4th and 5th Defendants on 12th June 2023. Their party-and-party Bill of Costs claimed Kshs.2,300,000 under item 1 as instruction fees and Kshs.667,000 under item 2 as getting-up fees. The Bill stated that each parcel was worth Kshs.15,000,000 at the time the suit was filed and referred, additionally, to an estimated current aggregate value of Kshs.50,000,000. The face of the Bill records a grand total of Kshs.3,649,073.
7. By a ruling delivered on 4th August 2025, the Taxing Officer stated that item 1 was taxed as drawn because the amount was reasonable and within the applicable law; item 2 was similarly taxed as drawn at one-third of the instruction fee; grouped numerous other items by reference to paragraphs under Schedule VI; and ultimately awarded Kshs.1,950,432. The ruling cited, inter alia, Joreth Limited v Kigano & Associates, Premchand Raichand Limited & another v Quarry Services of East Africa Limited (No. 3), Republic v Minister for Agriculture & 2 others ex parte Samuel Muchiri W'Njuguna & 6 others, and First American Bank of Kenya v Shah & others.
8. The Applicant's first reference was the Chamber Summons dated 12 August 2025. The Court, in its ruling delivered on 12th March 2026, rejected the objection founded solely upon failure to request reasons because the reasons were already contained on the face of the taxation ruling. It nevertheless found that the reference mounted an omnibus challenge and did not clearly identify the particular taxed items or grounds of objection. On that basis, and without determining whether items 1 and 2 were correctly taxed, the Court struck out the Chamber Summons with capped costs of Kshs.5,000. The Applicant lodged a Notice of Appeal dated 19th March 2026 but, by a letter dated 10th April 2026, requested the Deputy Registrar to mark it as withdrawn. The present motion was lodged on 13th April 2026.
Issues for determination
9. Having considered the rival material, the issues that fall for determination are: (a) whether the fresh reference is barred by res judicata, functus officio or amounts to an abuse of the court process; (b) whether time ought to be enlarged and the reference deemed duly filed; (c) whether the Applicant has established a basis for interference with the taxation; and (d) who should bear the costs of the motion.
Whether the fresh reference is barred by res judicata, functus officio or abuse of process
10. The doctrine of res judicata is codified in section 7 of the Civil Procedure Act. It bars a court from trying a suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, litigating under the same title, before a competent court, and has been heard and finally decided.
11. The Court of Appeal in Independent Electoral and Boundaries Commission v Maina Kiai & 5 others [2017] KECA 105 (KLR) distilled the conjunctive elements of the doctrine: identity of the matter in issue; identity of parties or their privies; litigation under the same title; a competent former court; and a final determination. The Supreme Court, in John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2021] KESC 39 (KLR), affirmed that res judicata promotes finality and protects the authority of judicial decisions, but must be applied only where its legal ingredients are satisfied.
12. There is identity of parties and subject matter between the two references. The decisive question, however, is whether the objections now advanced against items 1 and 2 were heard and finally determined on their merits. They were not. The order of 12th March 2026 was one striking out the former Chamber Summons because its pleading did not identify the challenged items. Paragraphs 20 to 22 of that ruling expressly show that the Court could not apply the governing taxation principles to any specified item. No finding was made on whether the instruction fee, the getting-up fee, or the aggregate taxed sum was correct.
13. A striking-out order for curable incompetence ordinarily leaves the merits undecided. That distinction is substantive, not semantic. The decision of the Court of Appeal in D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another [1982] KLR 1 underscores the exceptional and summary character of striking out and the court's duty to preserve matters capable of lawful adjudication. More directly, the High Court in Guchu & another v Andrew & Steve Advocates [2025] KEHC 12872 (KLR) recognized, in the context of a taxation reference, that striking out an incompetent reference may pave the way for a fresh reference properly filed. That reasoning accords with section 7 of the Civil Procedure Act because there is no final merit decision to found the bar.
14. The Court is not being asked to review or sit on appeal over the ruling of 12th March 2026. The Applicant accepts that ruling and has cured the defect it identified by specifying items 1 and 2 and the asserted errors of principle. The Court has also verified the letter dated 10th April 2026 withdrawing the Notice of Appeal. There is no evidence before the Court of a subsisting appeal whose jurisdiction would be usurped.
15. Equally the Court is not functus officio in respect of a controversy it never determined. The principle of functus officio protects final decisions from alteration by the court that made them; it does not prevent adjudication of a competent, fresh proceeding where the former proceeding ended without a determination of the merits. The objection founded upon res judicata and functus officio therefore fails.
16. That conclusion does not confer an unrestricted licence to re-litigate. Repetitive applications calculated to evade or overturn final decisions may be stayed or struck out as an abuse of process. Here, however, the fresh motion was filed one month after the striking-out ruling, identifies the precise items omitted from the first reference, and followed withdrawal of the proposed appeal. On the present record, the sequence reflects an attempt to regularize the challenge, not collateral impeachment of a final merits decision. The plea of abuse of process is not established.
Whether time ought to be enlarged
17. Paragraph 11(1) and (2) of the Advocates Remuneration Order prescribes fourteen days for notice of objection and a further fourteen days, after receipt of reasons, for filing a reference. Paragraph 11(4) expressly gives the High Court discretion to enlarge either period, even after expiry. The existence of jurisdiction to enlarge time is therefore beyond contest.
18. The discretion is judicial. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR), the Supreme Court stated that extension of time is equitable, not a right; the applicant bears the burden of laying a basis; delay must be explained to the Court's satisfaction; and the Court must consider prejudice and the circumstances of each case. The Court of Appeal similarly explained in County Executive of Kisumu v County Government of Kisumu & 8 others [2017] KECA 40 (KLR) that the length and reason for delay, prospects of the intended proceeding, prejudice, and the importance of compliance with timelines are material considerations.
19. The taxation ruling was delivered on 4th August 2025. The Applicant filed the first reference on 12th August 2025, within fourteen days. That reference remained pending until 12th March 2026. Although the present motion could not inherit the timeliness of a pleading that had been struck out, the initial prompt filing is relevant to diligence. After the striking-out order, the Applicant first signaled an appeal on 19th March 2026, withdrew that course on 10th April 2026, and filed the fresh motion three days later. The operative delay after the earlier ruling is about one month.
20. The supporting affidavit is inelegantly drawn and the assertion that Counsel was unaware of the ruling is neither particularized nor satisfactory, standing alone. Nevertheless, the documentary chronology supplies the explanation omitted in the prose: a timely first reference, an abortive appellate step, withdrawal, and prompt filing of the corrected reference. The Court does not endorse the procedural oscillation, but finds that the delay is not inordinate and has been substantially explained by the record.
21. The Respondents have a legitimate entitlement to enjoy their costs without indefinite obstruction. That prejudice can be addressed by expedition, costs and narrowly confining reconsideration to the challenged items. Conversely, refusing enlargement would shut the Applicant out from any merit examination despite his initial timely challenge and notwithstanding an apparent internal inconsistency in the taxation ruling. The balance of justice favours enlargement. Time is accordingly enlarged and the reference embodied in the Chamber Summons dated 13th April 2026 is deemed duly filed.
Whether the taxation should be disturbed
22. The jurisdiction on a reference is supervisory and circumscribed. In Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] KECA 325 (KLR), the Court of Appeal held that a judge will not normally interfere with the Taxing Officer's discretion unless the officer erred in principle. In Premchand Raichand Limited & another v Quarry Services of East Africa Limited (No. 3) [1972] EA 162, the former Court of Appeal for East Africa emphasized fair reimbursement, reasonable access to justice, proper professional remuneration, consistency, and non-interference merely because the judge might have reached a different figure. In First American Bank of Kenya v Shah & others [2002] 1 EA 64 it is further explained that taking irrelevant factors into account, omitting relevant factors, or arriving at a manifestly excessive or low award may disclose an error of principle.
23. As to instruction fees, the binding formulation in Joreth Limited v Kigano & Associates (Civil Appeal 66 of 1999) [2002] KECA 153 (KLR) is that the value of the subject matter is first to be determined from the pleadings, judgment or settlement. If it is not ascertainable from those sources, the Taxing Officer may exercise discretion, taking into account the nature and importance of the matter, the interests of the parties, the conduct of the proceedings, directions of the trial judge and all relevant circumstances. The discretion is not a power to import an unproved market figure into the pleadings; it is a power to assess a just fee transparently by reference to the recognized factors.
24. The Bill asserted an aggregate value of Kshs.30,000,000 at commencement and a current value of Kshs.50,000,000. Yet the material placed before this Court does not show that either sum was stated in the plaint, found in the judgment, or embodied in a settlement. The Respondents' own submissions acknowledge reliance upon estimated land values outside those primary sources. A current value, more than two decades after instructions were received, could not without more become the value of the subject matter at the time the fee was earned.
25. The Taxing Officer did not state which Advocates Remuneration Order governed the instruction, which pleaded or adjudicated figure supplied the subject value, or, if the value was unascertainable, how the discretionary factors justified Kshs.2,300,000. The conclusion that the amount was 'reasonable and within applicable law' is not an analysis. In Republic v Minister for Agriculture & 2 others ex parte Samuel Muchiri W'Njuguna & 6 others [2006] KEHC 1005 (KLR) the court, stresses, correctly that taxation is a judicial function and that discretion must rest upon rational criteria clearly expressed for the parties to understand.
26. There is a further, material difficulty. Item 1 was claimed at Kshs.2,300,000 and item 2 at Kshs.667,000. The Taxing Officer stated that both were taxed as drawn. Those two items alone total Kshs.2,967,000, yet the global award was Kshs.1,950,432. The ruling neither records the amount taxed off each item nor supplies a reconciliation explaining how an aggregate, lower than the two expressly allowed items was reached. That is not a mere typographical infelicity. It makes the operative taxation impossible to audit, extract or enforce with confidence.
27. The Court is alive to Machira & Company Advocates v Arthur K. Magugu & another [2012] KECA 245 (KLR), which requires an objector to specify the items challenged and generally to follow the procedure in paragraph 11. Unlike the first reference, the present application specifically challenges item 1 and the consequential item 2 and seeks enlargement under paragraph 11(4). The face of the taxation ruling contains the Taxing Officer's stated reasons, such as they are. As the Court already held in its ruling of 12th March 2026, a further ritual request for the same reasons would serve no useful purpose. The present reference is therefore properly delimited.
28. Item 2 is derivative: under the applicable Schedule VI, getting-up fees are calculated by reference to the instruction fee where the conditions for such fees are met. Once the basis of item 1 cannot stand, item 2 and the final total necessarily require reconsideration. However, the Applicant has not properly challenged the remaining individual items. The Court will not convert a limited reference into a re-hearing of the entire Bill.
29. The appropriate order is not for this Court to select a figure in the first instance. The taxing jurisdiction should be exercised afresh by a Taxing Officer upon the correct principles and a reasoned computation. To preserve both impartiality and appearance of fairness, and because the impugned ruling must be reconstructed arithmetically, the reassessment shall be undertaken by a different Taxing Officer.
30. For avoidance of doubt, the fresh taxation shall be confined to: item 1; item 2 as consequential upon item 1; and recalculation of the final amount allowed after incorporating the amounts already taxed on all unchallenged items. The Taxing Officer shall determine the remuneration order applicable when the relevant instruction was received; determine value from the pleadings, judgment or settlement, if ascertainable; and, if it is not ascertainable, assess a just instruction fee through the discretion recognized in Joreth Limited v Kigano & Associates (Civil Appeal 66 of 1999) [2002] KECA 153 (KLR), giving distinct reasons for the factors employed. The marked Bill and resulting total shall clearly show the sums allowed and taxed off.
Costs and disposal
31. Costs follow the event but remain discretionary under section 27 of the Civil Procedure Act. The Applicant succeeds, but the need for enlargement arose from the defective first reference and the present affidavit did not candidly explain every step. The Respondents were entitled to test the competence of the second reference. Justice is served by ordering each side to bear its own costs of the Chamber Summons.
32. In the result, the Court makes the following orders:
a) Time for lodging the fresh reference is enlarged under paragraph 11(4) of the Advocates Remuneration Order, and the reference contained in the Chamber Summons dated 13th April 2026 is deemed duly filed.
b) The taxation ruling delivered on 4th August 2025 is set aside only in respect of item 1 (instruction fees), item 2 (getting-up fees), and the consequential final total.
c) The 4th and 5th Respondents' party-and-party Bill of Costs is remitted to a Taxing Officer other than the officer who delivered the ruling of 4th August 2025 for reassessment strictly in accordance with paragraph 30 of this ruling.
All other unchallenged items shall remain undisturbed, subject only to accurate incorporation in the recomputed total.
d) Pending that limited reassessment, execution founded upon the certificate or warrants derived from the taxation of 4th August 2025 is stayed. The stay shall lapse upon issuance of a fresh certificate of costs following reassessment, unless otherwise lawfully ordered.
e) Each party shall bear its own costs of the Chamber Summons dated 13th April 2026.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17TH DAY OF SEPTEMBER, 2026, VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORM
KENNEDY KANDET
JUDGE
IN THE PRESENCE OF
MAHUGU FOR THE APPLICANT
SHARMA FOR THE RESPONDENT
COURT ASSISTANT: AGGREY