https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9426

Gikaria t/a Anthony Gikaria & Co Advocates v Muchemi (Family Miscellaneous Application E006 of 2025) [2026] KEHC 9426 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9426 (KLR) Republic of Kenya In the High Court at Nyeri Family Miscellaneous Application E006 of 2025 DKN Magare, J June 25, 2026 Between Anthony Gikaria t/a Anthony Gikaria & Co Advocates Applicant and Esther Wanjiru Muchemi Respondent Ruling 1.This Ruling is in respect of the Chamber Summons dated 10.8.2025. The Bill of Costs dated 25.3.2025 is described to arise from Nyeri High Court Succession Cause No. 26 of 2017 in which the Applicant as advocate represented the Respondent as client. 2.The application is supported by grounds on its face and the affidavit of Antony Gikaria sworn on 10.8.2025 and seeks an Order that the Ruling of the Taxing Master dated 30.7.2025 be set aside. The Honourable Deputy Registrar taxed the bill at Kshs. 500,000/=. 3.The Applicant contended that the taxing master erred in principle in the assessment of instruction fees. That the subject matter was worthy a gross capital value of Kshs. 78,000,000/= which ought to have been considered instead of Kshs. 50,000,000/=. 4.It was further averred that the Honourable Taxing Master erred in not increasing instruction fees by 50% as per the Remuneration Order. 5.The Respondent filed a Replying Affidavit sworn on 16.10.2025. It was deposed that the taxing master correctly established the instruction fees and taxed the bill on scale and there is no justified error of principle for this court to interfere. 6.It was submitted that the addition of 50% on instruction fees was not mandatory and the taxing officer had discretion to increase or reduce the fees. On the value of the subject matter, it was deposed that the value of Ksh. 50,000,000/= which was pleaded was the correct value and which the court applied. Submissions 7.The Applicant filed submissions dated 22.9.2025. It was submitted that the party and party bill of costs having been taxed formed the basis for calculating advocates client bill of costs, in which the taxing officer was mandated to increase the party and party costs by one half. Reliance was placed inter alia on Schedule VI Part B of the Advocates Remuneration Order and the case of Central Bank of Kenya v Makhecha & Co. Advocates (2019) eKLR. Based on this, it was submitted that the provision that party and party costs be increased by half meant advocate/client costs was a matter of arithmetic and did not require exercise of discretion. 8.The Applicant submitted that the instruction fees of Kshs.500,000/= awarded to the Advocate ought to be set aside and the same be substituted with an amount that takes into consideration the actual and true gross capital value of the net estate of the deceased as the minimum fee chargeable increased by an additional one-half as permitted under Schedule 10 (d) of the Advocates Remuneration Order being the applicable scale in respect of Probate & Administration matters. 9.Reliance was placed on Philip Muchiri Mugo vs Mbeu Kithakwa [2016] eKLR, where it was submitted that the court relied upon the general principles applicable in award of costs as enunciated in the Canadian case of Reese vs Alberta when it stated as follows:“While the discretion of costs of a lawsuit is always in the discretion of the court, the exercise of that discretion must be consistent with established principles and practice…., the costs recoverable are those fees fixed for the steps in the proceeding by a schedule of fees …. plus, reasonable disbursements….” 10.On the part of the Respondent, they filed submissions dated 13.10.2025. It was submitted that the value of the subject matter as pleaded, and on which the court exercised judicial discretion in awarding Kshs. 500,000/= as instruction fees was Ksh. 50,000,000/=. 11.It was submitted that the Applicant’s argument that a 50% increment under Schedule 6(B) is mandatory is legally untenable. Schedule 6(B) provides that “the minimum fees as between advocate and client shall be the fees prescribed in Part A increased by one-half.” Reliance was placed on the Supreme Court in Kenya Airports Authority v Otieno Ragot & Co. Advocates, Petition No. E011 of 2023 as follows:“As to whether there Taxing Officer is simply to increase the instruction fees determined in Part A by one-half or 50%, we are not persuaded. Rule 16 grants discretion to the Taxing Officer to increase or reduce the fee as he or she deems fit.” 12.Reliance was also placed on Mumias Sugar Company Limited v Professor Tom Ojienda & Associates [2019] KEHC 9728 (KLR), where the Court held:“When a Party-and-Party Bill of Costs has been taxed, it is in order for the Taxing Officer to determine Advocate/Client costs by increasing the Party costs by 50%. However, when an Advocate/Client Bill of Costs has been taxed, there is no legal basis for increasing it by 50%.” 13.It was also submitted that the 50% uplift was not pleaded or claimed in the Applicant’s Bill of Costs dated 25th March 2025. The court cannot grant what has not been sought. This principle was emphasized in Independent Electoral and Boundaries Commission v Stephen Mutinda Mule & 3 Others [2014] eKLR, where the Court of Appeal held that “a court of law cannot grant a relief that has not been specifically pleaded or prayed for.” 14.It was submitted that the reference was fatally defective as the Applicant did not request for reasons before filing this reference. Reliance was placed on Rule 11(1) of the Advocates (Remuneration) Order which provides that:“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.” Analysis 15.The preliminary issue emerged as to the defect of the Reference application due to failure to request reasons. The Taxing Officer ought to disclose what informed the decision to tax the costs in one way as opposed to another. I therefore agree with the decision in Republic vs. Minister for Agriculture & 2 Others ex parte Samuel Muchiri W’njuguna & 6 Others (2006) eKLR where Ojwang, J (as he then was) expressed himself inter alia as follows::“… It is necessary to ascertain how she arrived at that figure; for although the judicial review applicant’s firm position is that it was an exercise of lawful discretion which therefore, this court should uphold, the correct perception of the discretion donated by law, I believe, is that such a discretion is only duly exercised when it is guided by transparent, regular, reliable and just criteria…” 16.The court proceeded thus:“…it was necessary to specify clearly and candidly how she exercised her discretion… it is not enough to set by attributing to oneself discretion originating from legal provision and thereafter merely cite wonted rubrics under which that discretion may be exercised, as if these by themselves could permit of assignment of mystical figures of taxed costs…complex elements in the proceedings which guide the exercise of the taxing officer’s discretion must be specified cogently and with conviction…if novelty is involved in the main proceedings the nature of it must be identified and set out in a conscientious mode….if the conduct of the proceedings necessitated the deployment of a considerable amount of industry and was inordinately time consuming, the details of such a situation must be set out in a clear manner…” 17.A cursory perusal of the Ruling dated 30.7.2025 shows the ration and ration decidendi of the decision of the taxing officer and which was based on the cited authorities. I do not think that the failure to separately call for the reasons would ipso facto render this reference inoperative. The contrary could hold if no reason was given at all. In Danson Mutuku Muema vs. Julius Muthoka Muema & Others Machakos High Court Civil Appeal No. 6 of 1991 which was cited in Republic vs. Ministry of Agriculture & 2 others Ex parte Muchiri W’njuguna & 6 Others (supra) Mwera, J (as he then was) held that whereas the Court was entirely right to give the costs within its discretion, the amount allowed being ten times the sum provided for, the Court did not think the said sum was reasonable and found that it was definitely excessive as opposed to three or four times. The Court further found that since the Taxing Officer was bound to give reasons for exercising his discretion and as none were given in his ruling save to say that he simply exercised his discretion, it was just and fair to set aside the sum he allowed. 18.The issue is whether the learned taxing officer erred in her taxation of the Applicant’s Bill of Costs dated 25.3.2025. 19.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 were laid down in the case of First American Bank of Kenya vs. Shah and Others [2002] 1 EA 64., as follows:(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 and, according to the Order itself, some of the relevant factors to be taken into account include the nature and the importance of the cause or matter, the amount or value of the subject matter involved, the interest of the parties, the general conduct of the proceedings and any direction by the trial judge;(3)if the Court considers that the decision of the Taxing Officer discloses errors of principle, the normal practise 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, the amount awarded was high;(4)it is within the discretion of the Taxing Officer to increase or reduce the instruction fees and the amount of the increase or reduction is discretionary; (5) the Taxing Officer must set out the basic fee before venturing to consider whether to increase or reduce it;(6)the full instruction fees to defend a suit are earned the moment a defence has been filed and the subsequent progress of the matter is irrelevant to that item of fees;(7)the mere fact that the defendant does research before filing a defence and then puts a defence informed of such research is not necessarily indicative of the complexity of the matter as it may well be indicative of the advocate’s unfamiliarity with basic principles of law and such unfamiliarity should not be turned into an advantage against the adversary. 20.The position was reiterated in Karen & Associates Advocates vs. Caroline Wangari Njoroge [2019] eKLR, in which the Court cited the decision of the Court in Ochieng, Onyango, Kibet and Ohaga Advocates vs. Adopt Light Ltd. HC Misc 729 of 2006 where the court stated that;“…The taxing master must consider the case and the labour required in the matter, the nature or importance of the matter more so the amount or value of the subject matter involved, the interest of the client in sustaining or losing a brief and the complexity of the dispute. In assessing an amount commensurate to the work undertaken, it is of fundamental importance to consider the value of the subject…” 21.In the same case, it was held that:“The law gives the taxing master some leeway but like all discretions, it must be exercised judicially and in line to the material presented before court.” 22.Therefore, it is settled that the Court should interfere with the decision of the Taxing Officer where there has been an error in principle but should not do so in questions solely of quantum as that is an area where the Taxing Officer is more experienced and therefore more apt to the job. 23.The court will intervene only in exceptional cases and multiplication factors should not be considered when assessing costs by the Taxing Officer or even the Judge on appeal; the costs should not be allowed to rise to such level as to confine access to court to the wealthy; a successful litigant ought to be fairly reimbursed for the costs he had to incur in the case; the general level of remuneration of Advocates must be such as to attract recruits to the profession; so far as practicable there should be consistency in the awards made; every case must be decided on its own merit and in every variable degree, the value of the suit property may be taken into account. 24.Similarly, the instructions fees ought to take into account the amount of work done by the advocate, and where relevant, the subject matter of the suit as well as the prevailing economic conditions; one must envisage a hypothetical counsel capable of conducting the particular case effectively but unable or unwilling to insist on the particular high fee sometimes demanded by counsel of pre-eminent reputation; then one must know that what fee this hypothetical character would be content to take on the brief; clearly it is important that advocates should be well motivated but it is also in the public interest that cost be kept to a reasonable level so that justice is not put beyond the reach of poor litigants. 25.In the ruling the learned Taxing Officer applied the value of the subject matter as indicated in form P&A 5 as Ksh. 50,000,000/= and awarded instruction fees of Ksh. 500,000/=. The court considered that the succession cause from which the taxation arose was still ongoing and that the Applicant filed pleadings and summons for confirmation of grant. In Republic vs. Minister for Agriculture & 2 Others ex parte Samuel Muchiri W’njuguna & 6 Others (supra), the court held as follows:“…A taxing officer does not arrive at a figure by multiplying the scale fee, but places what he considers a fair value upon the work and responsibility involved…Since costs are the ultimate expression of essential liabilities attendant on the litigation event, they cannot be served out without either a specific statement of the authorizing clause in the law, or a particularized justification of the mode of exercise of any discretion provided for…The complex elements in the proceedings which guide the exercise of the taxing officer’s discretion, must be specified cogently and with conviction. The nature of the forensic responsibility placed upon counsel, when they prosecute the substantive proceedings, must be described with specificity. If novelty is involved in the main proceedings, the nature of it must be identified and set out in a conscientious mode. If the conduct of the proceedings necessitated the deployment of a considerable amount of industry and was inordinately time-consuming, the details of such a situation must be set out in a clear manner. If large volumes of documentation had to be classified, assessed and simplified, the details of such initiative by counsel must be specifically indicated – apart, of course, from the need to show if such works have not already been provided for under a different head of costs…” 26.The Applicant’s submission is that the taxing officer erred in applying instruction fees based on Ksh. 50,000,000/= as opposed to Ksh. 78,000,000/= as the capital value as per valuation report. As was held in First American Bank of Kenya vs. Shah and Others (supra), the Taxing Officer must set out the basic fee before venturing to consider whether to increase or reduce it. In Opa Pharmacy Ltd vs. Howse & Mcgeorge Ltd Kampala HCMA No. 13 of 1970 (HCU) [1972] EA 233, it was held:“Whereas the taxing officer is given discretion of taking into account other fees and allowances to an advocate in respect of the work to which instructions fees apply, the nature and importance of the case, the amount involved, the interest of the parties, general conduct of the proceedings and all other relevant circumstances and taking any of these into consideration, may therefore increase the instruction fees, the taxing officer, in this case gave no reason whatsoever for doubling the instruction fee. Had the taxing officer given his reasons at least there would be known the reason for the inflation. As it is he has denied the appellant a reason for his choice of the figure, with the result that it is impossible to say what was in the taxing officer’s mind. The failure to give any reason for the choice, surely, must, therefore, amount to an arbitrary determination of the figure and is not a judicial exercise of one’s discretion.” 27.The principles guiding taxation were similarly reiterated by the Court of Appeal of Uganda in Makula International vs. Cardinal Nsubuga & Another [1982] HCB 11 where the Court pronounced itself as follows:“The taxing officer should, in taxing a bill, first find the appropriate scale fee in schedule VI, and then consider whether the basic fee should be increased or reduced. He must give reasons for deciding that the basic fee should be increased or decreased. When he has decided that the scale should be exceeded, he does not arrive at a figure which he awards by multiplying the scale fee by a multiplication factor, but places what he considers a fair value upon the work or responsibility involved. Lastly, he taxes the instruction fee, either by awarding the basic fee or by increasing or decreasing it.” 28.All these authorities place the interreference of the Judge on matters of taxing as an exception and not the general rule. In this case, the taxing officer applied the instruction fees that was pleaded. I do not find an error of principle or irrelevant consideration. I say so because the Applicant cannot be correct in asserting that the subject matter ought to have been deduced from a valuation report. That is not the conventional rule in taxation. The rule is that the instructions fees may arise from pleadings or judgment. It does not arise from the evidence that a party relies on. On instruction fees in the case of Joreth Limited vs. Kigano & Associates [2002] 1 EA 92 at 99 the Court of Appeal held that the value of the subject matter for the purposes of taxation of a bill of costs ought to be determined from the pleadings, judgment or settlement (if such be the case) but if the same is not so ascertainable the Taxing Officer is entitled to use his discretion to assess such instruction fee as he considers just, taking into account, amongst other matters, the nature and the importance of the cause or matter, the interest of the parties, the general conduct of the proceedings, any direction by the trial judge and all other relevant circumstances. It is not really in the province of a Judge to re-tax the bill. If the Judge comes to the conclusion that the taxing officer has erred in principle, he should refer the bill back for taxation by the same or another taxing officer with appropriate directions on how it should be done. The Judge ought not to interfere with the assessment of costs by the Taxing Officer unless the officer has misdirected himself on a matter of principle. In principle the instruction fee is an independent and static item, is charged once only and is not affected or determined by the stage the suit has reached. The Taxing Officer whilst taxing his bill of costs is carrying out his functions as such only. He is an officer of the Superior court appointed to tax bills of costs. 29.While remitting the matter for fresh taxation, the learned Judges in the Joreth (supra) gave the following guidelines:1.the proceedings in question were purely public-law proceedings and are to be considered entirely free of any private-business arrangements or earnings of the tea production sector;2the taxation of advocates’ instruction fees is to seek no more and no less than reasonable compensation for professional work done;3the taxation of advocates’ instruction fees should avoid any prospect of unjust enrichment, for any particular party or parties;4so far as apposite, comparability should be applied in the assessment of advocate’s instruction fees;5objectivity is to be sought, when applying loose-textures criteria in the taxation of costs;6where complexity of proceedings is a relevant factor, firstly, the specific elements of the same are to be judged on the basis of the express or implied recognition and mode of treatment by the trial judge;7where responsibility borne by advocates is taken into account, its nature is to be specified;8where novelty is taken into account, its nature is to be clarified;9where account is taken of time spent, research done, skill deployed by counsel, the pertinent details are to be set out in summarized form. 30.The taxing officer is entitled to keep in mind that the successful party must be reimbursed expenses reasonably incurred due to the litigation, and that advocates remuneration should be at such level as to attract recruits into the legal profession. This should be balanced with a duty to the public not to allow costs to be so hiked that courts would remain accessible to only the wealthy. In the case of Paul Ssemogerere & Olum vs. Attorney General - Civil Application No.5 of 2001 [unreported] the Court held:“In our view, there is no formula by which to calculate the instruction fee. The exercise is an intricate balancing act whereby the taxing officer has to mentally weigh the diverse general principles applicable, which sometimes, are against one another in order to arrive at the reasonable fee. Thus while the taxing officer has to keep in mind that the successful party must be reimbursed expenses reasonably incurred due to the litigation, and that advocates, remuneration should be at such level as to attract recruits into the legal profession, he has to balance that with his duty to the public not to allow costs to be so hiked that courts would remain accessible to only the wealthy. Also while the taxing officer is to maintain consistency in the level of costs, it is settled that he has to make allowance for the fall, if any, in the value of money. It is because of consideration for this intricate balancing exercise that taxing officer's opinion on what is the reasonable fee, is not to be interfered with lightly. There has to be a compelling reason to justify such interference. 31.On the issue of increasing instruction fees by 50%, I equally do not see the manner in which the taxing officer erred. There must be reason to interfere with the decision of a taxing officer. This was taxing based on the advocate–client bill of costs presented before the court. There was no item known as 50%. The taxing officer cannot increase a bill of costs. It is to be taxed as drawn or less. In the case of Mumias Sugar Company Limited v Professor Tom Ojienda & Associates [2019] KEHC 9728 (KLR), the Court held:“When a Party-and-Party Bill of Costs has been taxed, it is in order for the Taxing Officer to determine Advocate/Client costs by increasing the Party costs by 50%. However, when an Advocate/Client Bill of Costs has been taxed, there is no legal basis for increasing it by 50%.” 32.Being as it is detailed above, the Application has no merit and fails. Determination 33.In the upshot, I issue the following orders:-a.The Chamber Summons application dated 10.8.2025 is dismissed.b.Each party shall bear their own costs. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 25TH DAY OF JUNE, 2026. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:-Mr. Gikaria/Applicant presentMs. Njeru for the RespondentCourt Assistant – Martin