Introduction
1. Before this Court for determination are two rival applications. The first is dated 22nd November 2024, by the Advocate (Applicant) seeking entry of judgment in the sum of Kshs. 588,052.77 being the taxed costs certified by the Deputy Registrar on 4th November 2024.
2. The second is the application dated 11th December 2024 by the Clients (Respondents) seeking, inter alia, stay of execution of the certificate of taxation, setting aside of the ruling of the taxing officer, and reopening of the Advocate/Client Bill of Costs dated 20th August 2024.
3. The two applications were canvassed together. The Advocate filed a replying affidavit sworn on 14th February 2025 and submissions dated 31st July 2025. The Respondents filed a supporting affidavit sworn by their director, Mr. Diamond Lalji, on 11th December 2024, a supplementary affidavit sworn on 20th June 2025, and submissions dated 29th July 2025.
The Clients’ Case
4. The Clients/Respondents, Maize Milling Company Limited and Capitol Second Limited, by their application oppose the Advocate’s application for entry of judgment. Instead, they seek orders staying execution of the ruling and certificate of taxation issued on 4th November 2024, setting aside the said ruling and certificate, and reopening the Advocate/Client Bill of Costs dated 20th August 2024 for hearing afresh.
5. The Respondents contend that the taxation of the Bill of Costs was taxed ex parte without their participation. They aver that they only became aware of the taxation through a subsequent application listed for 16th December 2024 after being served through their director’s mobile number. They maintain that they were denied the opportunity to be heard.
6. In particular, the Respondents challenge the affidavit of service sworn on 12th September 2024 and subsequent affidavits relied upon by the Advocate. They assert that the email addresses cited therein were no longer operative and therefore incapable of receiving service. They further argue that the Advocate deliberately avoided serving the Bill of Costs through their known telephone contacts, and that no physical service was effected at their offices. They point out that the pleadings bear no company stamp, which in their view demonstrates that service was never effected.
7. The Respondents also filed a supplementary affidavit sworn on 20th June 2025 wherein Mr. Lalji clarified that he is a director of the companies and not a legal officer of Trident Insurance Company Limited, attributing the earlier description to a typographical error. He reiterated that the Bill of Costs was never served upon them either physically or electronically, and that the absence of acknowledgment or stamping on the pleadings confirms non service.
8. In their written submissions dated 29th July 2025, the Respondents argue that the court has discretion under paragraph 11(4) of the Advocates Remuneration Order (ARO) to enlarge time for filing a reference against taxation. They rely on the principles set out in Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] EA 231, where the Court of Appeal held that extension of time is discretionary and guided by the length of delay, reasons for delay, chances of success, and prejudice to the other party. They also cite Re Estate of Mutetema Itumo and Josephine Wambui Githinji v Peter Gachenga Kimuhu & 2 others to support their plea for extension of time.
9. The Respondents submit that they were denied a fair hearing owing to defective service, and that justice demands the reopening of the taxation proceedings. They urge the court to exercise its discretion to set aside the certificate of taxation and allow them to challenge the Bill of Costs. They maintain that no prejudice will be occasioned to the Advocate if the matter is reopened, whereas they stand to suffer irreparable loss if judgment is entered against them on the basis of an ex parte taxation.
The Advocate’s Case
10. The Advocate/Applicant, Mr. Robinson Onyango Malombo t/a O. M. Robinson & Company Advocates, in its application brought under Section 51(2) of the Advocates Act and Order 51 Rule 1 of the Civil Procedure Rules, seeks entry of judgment against the Respondents in the sum of Kshs. 588,052.77, being the costs taxed and certified by the Deputy Registrar on 4th November 2024, together with interest from 6th November 2024 and costs of the application.
11. The Advocate’s case is that he was duly instructed by the Respondents to represent them in Nairobi High Court Commercial Civil Case No. 324 of 2017 (Maize Milling Company Limited & Capitol Second Limited v Spire Bank Limited & Garam Investments Auctioneers). He rendered professional services in that matter until the Advocate–Client relationship ceased in 2023. Thereafter, he lodged an Advocate/Client Bill of Costs dated 20th August 2024 which was taxed at Kshs. 588,052.77 by the taxing officer on 4th November 2024. A certificate of taxation was issued on 8th November 2024.
12. The Advocate avers that the certificate of taxation was duly served upon the Respondents by electronic means and through their director, Mr. Diamond Lalji, as evidenced by affidavits of service sworn on 12th September 2024, 12th November 2024, and 27th November 2024, as well as affidavits of service sworn by process server Oscar Agot. He maintains that service was effected via email, WhatsApp, and personal delivery at Capitol Hill Towers, and that the Respondents cannot approbate and reprobate service by acknowledging receipt of one application while denying receipt of the Bill of Costs served in the same manner.
13. The Advocate further contends that the Respondents did not file any reference against the taxation within the timelines stipulated under paragraph 11 of the Advocates Remuneration Order. He submits that the certificate of taxation is therefore final and conclusive as to the amount of costs, and that the Court has no option but to enter judgment in terms thereof. He relies on Section 51(2) of the Advocates Act and the decision in Lubulellah & Associates Advocates v N.K. Brothers Limited [2015] eKLR, where the Court held that once a certificate of taxation has been issued and no reference filed, the Court’s only role is to enter judgment.
14. In his replying affidavit sworn on 14th February 2025, the Advocate refutes the Respondents’ allegations of non service, terming them false and contradictory. He annexes CR12 forms to demonstrate that Mr. Diamond Lalji is a director of both the Respondents and Trident Insurance Company Limited, and therefore a proper recipient of service. He argues that the Respondents’ application dated 11th December 2024 is incompetent, offends paragraph 11 of the Advocates Remuneration Order, and is a ploy to delay expeditious disposal of his application.
15. In his written submissions dated 31st July 2025, the Advocate reiterates that the Respondents’ application is not a proper reference, having been filed outside the statutory timelines and without any prayer for enlargement of time. He submits that the Respondents are bound by their pleadings and cannot seek relief not prayed for.
16. The Advocate therefore urged this Court to dismiss the Respondents’ application with costs and to allow his application dated 22nd November 2024 by entering judgment in terms of the certificate of taxation.
Analysis and Determination
17. I have carefully considered the two applications before me, the affidavits in support and in reply, the rival submissions of counsel, the authorities cited, and the applicable law. The issues for determination, in my view, are:
i. Whether the Taxation should be set aside on account of defective (non) service;
ii. Whether their application dated 11th December 2024 is a competent reference under paragraph 11 of the Advocates Remuneration Order; and
iii. Whether judgment should be entered in terms of the certificate of taxation dated 8th November 2024.
Whether the Taxation should be set aside on account of defective (non) service;
18. The decision whether or not to set aside ex parte judgement is discretionary is not in doubt and that the discretion is intended so to be exercised to avoid injustice and hardship resulting from accident, inadvertence or excusable mistake or error, but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice. See Shah vs. Mbogo & Another [1967] EA 116.
19. In CMC Holdings Ltd vs. Nzioki [2004] KLR 173, the Court of Appeal stated that:
“In an application for setting aside ex parte judgement, the Court exercises its discretion in allowing or rejecting the same. That discretion must be exercised upon reasons and must be exercised judiciously…In law the discretion that a court of law has, in deciding whether or not to set aside ex parte order was meant to ensure that a litigant does not suffer injustice or hardship as a result of amongst other an excusable mistake or error. It would not be proper use of such discretion if the Court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error. Such an exercise of discretion would be wrong principle.”
20. In the present case, the Respondents seeks to have the taxation set aside and that the taxation proceedings reopened on account of non-service of the Bill of Costs and the ensuing Notice of Taxation. They denied service, contending that the email addresses through which the Advocate alleged to have effected service were non functional and that no physical service was effected on them. However, they have not produced any evidence to substantiate the alleged non functionality of the email addresses, nor affidavits from their staff rebutting receipt.
21. The Advocate on the other hand asserted that service was effected on the Respondents and placed before the Court several affidavits of service sworn on 12th September 2024, 12th November 2024, and 27th November 2024, together with affidavits of service sworn by process server Oscar Agot. These in my view demonstrate service by email to the Respondents’ known addresses, by WhatsApp to the director’s mobile number, and personal service at Capitol Hill Towers.
22. Under Order 5 Rule 22B of the Civil Procedure Rules (as amended in 2020), service by electronic means, including email, is valid service provided the address is the last known and the transmission is not returned undelivered. The Advocate’s affidavits confirm that the emails were not returned, and WhatsApp service was also effected. As pointed out under paragraph 20 of this Ruling, the Respondents did not produce any technical evidence to prove non functionality of the email addresses, nor affidavits from their staff rebutting receipt.
23. It is settled law that Affidavits of service are prima facie evidence of service. The Court of Appeal in Shadrack Arap Baiywo v Bodi Bach [1987] eKLR, cited with the approval the decision in M B Automobile v Kampala Bus Service, [1966] EA 480 at page 484 where it was stated that:
“There is a qualified presumption in favour of the process server recognized in M B Automobile v Kampala Bus Service, [1966] EA 480 at page 484 as having been the view taken by the Indian Courts in construing similar legislation. On Chitaley and Annaji Rao; The Code of Civil Procedure Volume II page 1670, the learned commentators say:
“3. Presumption as to service – There is a presumption of services as stated in the process server’s report, and the burden lies on the party questioning it, to show that the return is incorrect. But an affidavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sufficient evidence of the regularity of the proceedings. But if the fact of service is denied, it is desirable that the process server should be put into the witness box and opportunity of cross examination given to those who deny the service.”
24. It therefore follows that once an affidavit of service is duly executed and filed, the burden shifts to the party disputing service to rebut with cogent evidence. In this case, beyond alleging that the e-mail addresses were not functional, no cogent evidence has been tabled by the Clients in support of that allegation, sufficient enough to displace the presumption of service.
25. In Shah v Mbogo [1967] EA 116, the Court emphasized that discretion to set aside ex parte proceedings is exercised to avoid injustice or hardship resulting from accident or excusable mistake, but not to assist a party who deliberately seeks to obstruct justice. The Respondents’ denial of service, unsupported by evidence, appears calculated to delay. I am satisfied that service was duly effected.
26. Accordingly, I am persuaded that service was duly effected, and therefore, I find no basis of setting aside the Certificate of Taxation.
Whether their application dated 11th December 2024 is a competent reference
27. The Client’s application dated 11th December 2024 seeks to set aside the taxing officer’s decision. It is settled law that the only recourse available for a party who feels aggrieved by a decision of the Taxing Officer is by way of Reference to a Judge pursuant to Paragraph 11 of the Advocates Remuneration Order, which is a complete code in itself. As was aptly stated by Ringera, J. (as he then was) in the Matter of Winding Up of Leisure Lodges Limited, Winding Up Cause No. 28 of 1996, this is the recourse available whether it be on the quantum awarded on the bill as a whole or any items thereof or on the validity of the bill as a whole or any specific items.
28. Similarly, in Machira and Co. Advocates vs Magugu [2002] 2 EA 428 at page 433, it was held that:
“... any complaint about any decision of the taxing officer whether it relates to a point of law taken with regard to taxation or to a grievance about the taxation of any item in the bill of costs is ventilated by way of a reference to the Judge in accordance with paragraph 11 of the Advocates Remuneration Order.”
29. The procedure for challenging taxation is set out in Paragraph 11 of the Advocates (Remuneration) Order. Paragraph 11(1) ARO provides:
“Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.”
30. Paragraph 11(2) requires the taxing officer to give reasons, and the objector may within fourteen days thereafter file a reference by chamber summons. Paragraph 11(4) gives the Court discretion to enlarge time.
31. In this case, the Clients did not give notice within 14 days, did not seek reasons, and did not file a reference within time. Their application was filed more than one month after taxation. In any event, they did not pray for enlargement of time under Paragraph 11(4).
32. In the premises I find that the Respondents did not comply with this procedure. Their application was filed more than one month after taxation, without first seeking reasons, and without any prayer for enlargement of time under paragraph 11(4). The application is therefore not a proper reference and is fatally defective.
Whether judgment should be entered
33. The Advocate’s Application was brought under Section 51(2) of the Advocates Act, Cap 16, Laws of Kenya which provides that:
“The certificate of the taxing officer by whom any bill has been taxed shall, unless it is set aside or altered by the Court, be final as to the amount of the costs covered thereby, and the Court may make such order in relation thereto as it thinks fit, including, in a case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs.”
34. The Court of Appeal in Lubulellah & Associates Advocates v N.K. Brothers Limited [2015] eKLR held:
“The law is very clear that once a taxing master has taxed the costs, issued a Certificate of costs and there is no reference against his ruling… no other action would be required from the court save to enter judgment.”
35. Similarly, in Ahmednasir Abdikadir & Co. Advocates v National Bank of Kenya Ltd [2006] eKLR, the Court emphasized that a certificate of taxation is final and binding unless set aside.
36. In the present case, the certificate of taxation dated 8th November 2024 has not been set aside. The retainer is not disputed. The Advocate is therefore entitled to judgment for the sum certified.
Disposition
37. Accordingly, I order as follows: -
i. Judgment is hereby entered in favour of the Advocate against the Clients in the sum of Kshs. 588,052.77 as per the Certificate of Taxation dated 8/11/2024, together with interest thereon from 8/11/2024.
ii. The Clients’ application dated 11/12/2024 is dismissed with costs.
38. The principle that costs follow the event is codified in Section 27 of the Civil Procedure Act. The successful party, being the Advocate is therefore entitled to costs, which is hereby assessed at Kshs. 50,000/-.
39. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
11TH DECEMBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
.…………..for the Advocate/Applicant
….……………. for the Client/Respondent
1. Before this Court for determination are two rival applications. The first is dated 22nd November 2024, by the Advocate (Applicant) seeking entry of judgment in the sum of Kshs. 588,052.77 being the taxed costs certified by the Deputy Registrar on 4th November 2024.
2. The second is the application dated 11th December 2024 by the Clients (Respondents) seeking, inter alia, stay of execution of the certificate of taxation, setting aside of the ruling of the taxing officer, and reopening of the Advocate/Client Bill of Costs dated 20th August 2024.
3. The two applications were canvassed together. The Advocate filed a replying affidavit sworn on 14th February 2025 and submissions dated 31st July 2025. The Respondents filed a supporting affidavit sworn by their director, Mr. Diamond Lalji, on 11th December 2024, a supplementary affidavit sworn on 20th June 2025, and submissions dated 29th July 2025.
The Clients’ Case
4. The Clients/Respondents, Maize Milling Company Limited and Capitol Second Limited, by their application oppose the Advocate’s application for entry of judgment. Instead, they seek orders staying execution of the ruling and certificate of taxation issued on 4th November 2024, setting aside the said ruling and certificate, and reopening the Advocate/Client Bill of Costs dated 20th August 2024 for hearing afresh.
5. The Respondents contend that the taxation of the Bill of Costs was taxed ex parte without their participation. They aver that they only became aware of the taxation through a subsequent application listed for 16th December 2024 after being served through their director’s mobile number. They maintain that they were denied the opportunity to be heard.
6. In particular, the Respondents challenge the affidavit of service sworn on 12th September 2024 and subsequent affidavits relied upon by the Advocate. They assert that the email addresses cited therein were no longer operative and therefore incapable of receiving service. They further argue that the Advocate deliberately avoided serving the Bill of Costs through their known telephone contacts, and that no physical service was effected at their offices. They point out that the pleadings bear no company stamp, which in their view demonstrates that service was never effected.
7. The Respondents also filed a supplementary affidavit sworn on 20th June 2025 wherein Mr. Lalji clarified that he is a director of the companies and not a legal officer of Trident Insurance Company Limited, attributing the earlier description to a typographical error. He reiterated that the Bill of Costs was never served upon them either physically or electronically, and that the absence of acknowledgment or stamping on the pleadings confirms non service.
8. In their written submissions dated 29th July 2025, the Respondents argue that the court has discretion under paragraph 11(4) of the Advocates Remuneration Order (ARO) to enlarge time for filing a reference against taxation. They rely on the principles set out in Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] EA 231, where the Court of Appeal held that extension of time is discretionary and guided by the length of delay, reasons for delay, chances of success, and prejudice to the other party. They also cite Re Estate of Mutetema Itumo and Josephine Wambui Githinji v Peter Gachenga Kimuhu & 2 others to support their plea for extension of time.
9. The Respondents submit that they were denied a fair hearing owing to defective service, and that justice demands the reopening of the taxation proceedings. They urge the court to exercise its discretion to set aside the certificate of taxation and allow them to challenge the Bill of Costs. They maintain that no prejudice will be occasioned to the Advocate if the matter is reopened, whereas they stand to suffer irreparable loss if judgment is entered against them on the basis of an ex parte taxation.
The Advocate’s Case
10. The Advocate/Applicant, Mr. Robinson Onyango Malombo t/a O. M. Robinson & Company Advocates, in its application brought under Section 51(2) of the Advocates Act and Order 51 Rule 1 of the Civil Procedure Rules, seeks entry of judgment against the Respondents in the sum of Kshs. 588,052.77, being the costs taxed and certified by the Deputy Registrar on 4th November 2024, together with interest from 6th November 2024 and costs of the application.
11. The Advocate’s case is that he was duly instructed by the Respondents to represent them in Nairobi High Court Commercial Civil Case No. 324 of 2017 (Maize Milling Company Limited & Capitol Second Limited v Spire Bank Limited & Garam Investments Auctioneers). He rendered professional services in that matter until the Advocate–Client relationship ceased in 2023. Thereafter, he lodged an Advocate/Client Bill of Costs dated 20th August 2024 which was taxed at Kshs. 588,052.77 by the taxing officer on 4th November 2024. A certificate of taxation was issued on 8th November 2024.
12. The Advocate avers that the certificate of taxation was duly served upon the Respondents by electronic means and through their director, Mr. Diamond Lalji, as evidenced by affidavits of service sworn on 12th September 2024, 12th November 2024, and 27th November 2024, as well as affidavits of service sworn by process server Oscar Agot. He maintains that service was effected via email, WhatsApp, and personal delivery at Capitol Hill Towers, and that the Respondents cannot approbate and reprobate service by acknowledging receipt of one application while denying receipt of the Bill of Costs served in the same manner.
13. The Advocate further contends that the Respondents did not file any reference against the taxation within the timelines stipulated under paragraph 11 of the Advocates Remuneration Order. He submits that the certificate of taxation is therefore final and conclusive as to the amount of costs, and that the Court has no option but to enter judgment in terms thereof. He relies on Section 51(2) of the Advocates Act and the decision in Lubulellah & Associates Advocates v N.K. Brothers Limited [2015] eKLR, where the Court held that once a certificate of taxation has been issued and no reference filed, the Court’s only role is to enter judgment.
14. In his replying affidavit sworn on 14th February 2025, the Advocate refutes the Respondents’ allegations of non service, terming them false and contradictory. He annexes CR12 forms to demonstrate that Mr. Diamond Lalji is a director of both the Respondents and Trident Insurance Company Limited, and therefore a proper recipient of service. He argues that the Respondents’ application dated 11th December 2024 is incompetent, offends paragraph 11 of the Advocates Remuneration Order, and is a ploy to delay expeditious disposal of his application.
15. In his written submissions dated 31st July 2025, the Advocate reiterates that the Respondents’ application is not a proper reference, having been filed outside the statutory timelines and without any prayer for enlargement of time. He submits that the Respondents are bound by their pleadings and cannot seek relief not prayed for.
16. The Advocate therefore urged this Court to dismiss the Respondents’ application with costs and to allow his application dated 22nd November 2024 by entering judgment in terms of the certificate of taxation.
Analysis and Determination
17. I have carefully considered the two applications before me, the affidavits in support and in reply, the rival submissions of counsel, the authorities cited, and the applicable law. The issues for determination, in my view, are:
i. Whether the Taxation should be set aside on account of defective (non) service;
ii. Whether their application dated 11th December 2024 is a competent reference under paragraph 11 of the Advocates Remuneration Order; and
iii. Whether judgment should be entered in terms of the certificate of taxation dated 8th November 2024.
Whether the Taxation should be set aside on account of defective (non) service;
18. The decision whether or not to set aside ex parte judgement is discretionary is not in doubt and that the discretion is intended so to be exercised to avoid injustice and hardship resulting from accident, inadvertence or excusable mistake or error, but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice. See Shah vs. Mbogo & Another [1967] EA 116.
19. In CMC Holdings Ltd vs. Nzioki [2004] KLR 173, the Court of Appeal stated that:
“In an application for setting aside ex parte judgement, the Court exercises its discretion in allowing or rejecting the same. That discretion must be exercised upon reasons and must be exercised judiciously…In law the discretion that a court of law has, in deciding whether or not to set aside ex parte order was meant to ensure that a litigant does not suffer injustice or hardship as a result of amongst other an excusable mistake or error. It would not be proper use of such discretion if the Court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error. Such an exercise of discretion would be wrong principle.”
20. In the present case, the Respondents seeks to have the taxation set aside and that the taxation proceedings reopened on account of non-service of the Bill of Costs and the ensuing Notice of Taxation. They denied service, contending that the email addresses through which the Advocate alleged to have effected service were non functional and that no physical service was effected on them. However, they have not produced any evidence to substantiate the alleged non functionality of the email addresses, nor affidavits from their staff rebutting receipt.
21. The Advocate on the other hand asserted that service was effected on the Respondents and placed before the Court several affidavits of service sworn on 12th September 2024, 12th November 2024, and 27th November 2024, together with affidavits of service sworn by process server Oscar Agot. These in my view demonstrate service by email to the Respondents’ known addresses, by WhatsApp to the director’s mobile number, and personal service at Capitol Hill Towers.
22. Under Order 5 Rule 22B of the Civil Procedure Rules (as amended in 2020), service by electronic means, including email, is valid service provided the address is the last known and the transmission is not returned undelivered. The Advocate’s affidavits confirm that the emails were not returned, and WhatsApp service was also effected. As pointed out under paragraph 20 of this Ruling, the Respondents did not produce any technical evidence to prove non functionality of the email addresses, nor affidavits from their staff rebutting receipt.
23. It is settled law that Affidavits of service are prima facie evidence of service. The Court of Appeal in Shadrack Arap Baiywo v Bodi Bach [1987] eKLR, cited with the approval the decision in M B Automobile v Kampala Bus Service, [1966] EA 480 at page 484 where it was stated that:
“There is a qualified presumption in favour of the process server recognized in M B Automobile v Kampala Bus Service, [1966] EA 480 at page 484 as having been the view taken by the Indian Courts in construing similar legislation. On Chitaley and Annaji Rao; The Code of Civil Procedure Volume II page 1670, the learned commentators say:
“3. Presumption as to service – There is a presumption of services as stated in the process server’s report, and the burden lies on the party questioning it, to show that the return is incorrect. But an affidavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sufficient evidence of the regularity of the proceedings. But if the fact of service is denied, it is desirable that the process server should be put into the witness box and opportunity of cross examination given to those who deny the service.”
24. It therefore follows that once an affidavit of service is duly executed and filed, the burden shifts to the party disputing service to rebut with cogent evidence. In this case, beyond alleging that the e-mail addresses were not functional, no cogent evidence has been tabled by the Clients in support of that allegation, sufficient enough to displace the presumption of service.
25. In Shah v Mbogo [1967] EA 116, the Court emphasized that discretion to set aside ex parte proceedings is exercised to avoid injustice or hardship resulting from accident or excusable mistake, but not to assist a party who deliberately seeks to obstruct justice. The Respondents’ denial of service, unsupported by evidence, appears calculated to delay. I am satisfied that service was duly effected.
26. Accordingly, I am persuaded that service was duly effected, and therefore, I find no basis of setting aside the Certificate of Taxation.
Whether their application dated 11th December 2024 is a competent reference
27. The Client’s application dated 11th December 2024 seeks to set aside the taxing officer’s decision. It is settled law that the only recourse available for a party who feels aggrieved by a decision of the Taxing Officer is by way of Reference to a Judge pursuant to Paragraph 11 of the Advocates Remuneration Order, which is a complete code in itself. As was aptly stated by Ringera, J. (as he then was) in the Matter of Winding Up of Leisure Lodges Limited, Winding Up Cause No. 28 of 1996, this is the recourse available whether it be on the quantum awarded on the bill as a whole or any items thereof or on the validity of the bill as a whole or any specific items.
28. Similarly, in Machira and Co. Advocates vs Magugu [2002] 2 EA 428 at page 433, it was held that:
“... any complaint about any decision of the taxing officer whether it relates to a point of law taken with regard to taxation or to a grievance about the taxation of any item in the bill of costs is ventilated by way of a reference to the Judge in accordance with paragraph 11 of the Advocates Remuneration Order.”
29. The procedure for challenging taxation is set out in Paragraph 11 of the Advocates (Remuneration) Order. Paragraph 11(1) ARO provides:
“Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.”
30. Paragraph 11(2) requires the taxing officer to give reasons, and the objector may within fourteen days thereafter file a reference by chamber summons. Paragraph 11(4) gives the Court discretion to enlarge time.
31. In this case, the Clients did not give notice within 14 days, did not seek reasons, and did not file a reference within time. Their application was filed more than one month after taxation. In any event, they did not pray for enlargement of time under Paragraph 11(4).
32. In the premises I find that the Respondents did not comply with this procedure. Their application was filed more than one month after taxation, without first seeking reasons, and without any prayer for enlargement of time under paragraph 11(4). The application is therefore not a proper reference and is fatally defective.
Whether judgment should be entered
33. The Advocate’s Application was brought under Section 51(2) of the Advocates Act, Cap 16, Laws of Kenya which provides that:
“The certificate of the taxing officer by whom any bill has been taxed shall, unless it is set aside or altered by the Court, be final as to the amount of the costs covered thereby, and the Court may make such order in relation thereto as it thinks fit, including, in a case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs.”
34. The Court of Appeal in Lubulellah & Associates Advocates v N.K. Brothers Limited [2015] eKLR held:
“The law is very clear that once a taxing master has taxed the costs, issued a Certificate of costs and there is no reference against his ruling… no other action would be required from the court save to enter judgment.”
35. Similarly, in Ahmednasir Abdikadir & Co. Advocates v National Bank of Kenya Ltd [2006] eKLR, the Court emphasized that a certificate of taxation is final and binding unless set aside.
36. In the present case, the certificate of taxation dated 8th November 2024 has not been set aside. The retainer is not disputed. The Advocate is therefore entitled to judgment for the sum certified.
Disposition
37. Accordingly, I order as follows: -
i. Judgment is hereby entered in favour of the Advocate against the Clients in the sum of Kshs. 588,052.77 as per the Certificate of Taxation dated 8/11/2024, together with interest thereon from 8/11/2024.
ii. The Clients’ application dated 11/12/2024 is dismissed with costs.
38. The principle that costs follow the event is codified in Section 27 of the Civil Procedure Act. The successful party, being the Advocate is therefore entitled to costs, which is hereby assessed at Kshs. 50,000/-.
39. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
11TH DECEMBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
.…………..for the Advocate/Applicant
….……………. for the Client/Respondent