BN Kotecha & Sons Limited v Prof Tom Ojienda & Associates (Miscellaneous Application E942 of 2024) [2026] KEHC 7457 (KLR) (Commercial and Tax) (28 May 2026) (Ruling)

BN Kotecha & Sons Limited v Prof Tom Ojienda & Associates (Miscellaneous Application E942 of 2024) [2026] KEHC 7457 (KLR) (Commercial and Tax) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7457 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Miscellaneous Application E942 of 2024 MA Otieno, J May 28, 2026 Between BN Kotecha & Sons Limited Applicant and Prof Tom Ojienda & Associates Respondent Ruling 1.Before the court is the Chamber Summons dated 7th May 2025 by the Client/Applicant seeking orders that the decision of the Taxing Master delivered on 25th April 2025 be set aside, and the Bill of Costs be re-taxed by the court or, in the alternative, be remitted for re-taxation before a different taxing master. 2.The application is supported by the affidavit of Hemal Kotecha, sworn on 7th May 2025. The Applicant contends that the taxing master erred in principle in taxing the Advocate-Client Bill of Costs at Kshs. 10,837,750/=. 3.The Applicant faults the taxation on several grounds. First, that the taxing master applied Schedule 6(1)(b) instead of Schedule 6(1)(f)(i) of the Advocates Remuneration Order, which, according to the Applicant, was the applicable provision in insolvency proceedings. Secondly, that the instruction fees awarded were manifestly excessive. Thirdly, that the award of getting up fees was erroneous as the matter neither proceeded to trial nor appeal. 4.The Applicant also challenged the awards made under drawings and disbursements and contended that the taxing master failed to consider its submissions. 5.The application was opposed through the Advocate vide a Replying Affidavit sworn on 27th May 2025, by Prof. Tom Ojienda SC. The Advocate contended that the reference is premature and incurably defective for want of compliance with Rule 11(2) of the Advocates Remuneration Order since the Applicant filed the reference before receiving reasons from the taxing master. 6.The Advocate further contended that the taxing master properly exercised her discretion, correctly applied Schedule 6(1)(b), and took into account the value of the subject matter, the importance and complexity of the matter, and the work done by counsel in arriving at the instruction fees awarded. Submissions 7.The Application was canvassed by way of written submissions. The Client/Applicant filed submissions dated 1st September 2025, whilst the Advocate’s submissions are dated 13th October 2025. The Applicant/Client’s Submissions 8.The Applicant submitted that the taxing master erred in principle by applying Schedule 6(1)(b) of the Advocates Remuneration Order instead of Schedule 6(1)(f)(i), which specifically provides for fees in winding-up proceedings. 9.According to the Applicant, Schedule 6(1)(f)(i) provides a basic fee of Kshs. 25,200/= in winding up proceedings and remains valid law since it has not been repealed or amended pursuant to Section 44 of the Advocates Act. 10.Citing, among others, L.G Menezes & Company Advocates v B.N Kotecha & Sons Limited [2021], the Applicant asserted that Schedule 6(1)(f)(i) remains applicable in insolvency proceedings. 11.It was further the Applicant’s argument that the taxing master failed to identify the applicable basic instruction fee before enhancing the same and therefore acted contrary to the principles laid down in First American Bank of Kenya Ltd v Gulab P. Shah & 2 Others [2002] eKLR. 12.The Applicant also challenged the award of getting up fees, contending that the matter neither proceeded to trial nor appeal, and therefore Schedule 6 paragraph 2 of the Advocates Remuneration Order was inapplicable. 13.Finally, the Applicant argued that the awards made under drawings and disbursements were contrary to Schedule 6 Rule 4(a) and Paragraph 74 of the Advocates Remuneration Order because receipts were not produced in support of the disbursements claimed. The Advocate/Respondent’s Submissions 14.The Advocate opposed the reference on the ground that it is premature and incompetent for failure to comply with Rule 11(2) of the Advocates Remuneration Order. 15.According to the Advocate, once the Applicant sought reasons from the taxing master through the letter dated 29th April 2025, it was incumbent upon the Applicant to await the reasons before lodging the reference. Reliance is placed on, among others, Magdalena Alphonse Cheposwor v Chepusko Lonyareng & 5 Others [2021] eKLR. 16.On the merits, the Advocate submitted that the taxing master properly exercised her discretion and correctly applied Schedule 6(1)(b) since the value of the subject matter was ascertainable from the record. 17.The Advocate further contended that the taxing master properly considered the value of the subject matter, the importance and complexity of the matter, the volume of work undertaken, and the interests involved before awarding instruction fees of Kshs. 4,500,000/=. 18.Finally, relying on Joreth Ltd v Kigano & Associates [2002] 1 EA 92, the Advocate maintained that dissatisfaction with the amount awarded is not a basis for interference absent an error of principle; and that a Judge should be slow to interfere with taxation unless the Taxing Officer committed an error of principle. Analysis and Determination 19.I have considered the application, the rival submissions, the authorities cited, and the ruling of the taxing master delivered on 25th April 2025. The issues that arise for determination are:i.Whether the reference is incompetent for failure to comply with Rule 11 of the Advocates Remuneration Order; andii.Whether the taxing master erred in principle so as to warrant interference by this court. Whether the Reference is Competent 20.The Advocate argued that the Applicant sought reasons from the taxing master by letter dated 29th April 2025 and proceeded to file the reference before the reasons were furnished, thereby rendering the reference premature. 21.Rule 11 of the Advocates Remuneration Order provides the procedure for challenging a taxation. An objector is required to give notice of objection within fourteen days and, upon receipt of reasons, file a reference within fourteen days. 22.However, the jurisprudence on this point is now settled that where the taxing master’s ruling contains detailed reasons for taxation, there is no requirement for a party to await further reasons before lodging a reference. In Evans Thiga Gaturu v Kenya Commercial Bank Limited [2012] eKLR, the court observed that modern taxation rulings are ordinarily self-contained and sufficiently reasoned. A similar position was adopted in National Oil Corporation Limited v Real Energy Limited & Another [2016] eKLR. 23.From the records, I note that the ruling delivered on 25th April 2025 was detailed and addressed the basis upon which the taxing master arrived at the taxed amounts. The Applicant nevertheless wrote to the taxing master seeking further reasons “if any”. In the absence of a response, the Applicant proceeded to file the present reference. 24.In Muriu Mungai & Co. Advocates v New Kenya Co-operative Creameries Ltd [2008] KEHC 2091 (KLR), the Court stated that failure by the Taxing Officer to furnish reasons should not be visited upon the objector who has substantially complied with Paragraph 11 of the Advocates Remuneration Order. 25.In the circumstances, I concur with the Client’s arguments. I am not persuaded that the reference is incompetent. The ruling itself contained the reasons for taxation, and for that reason, I find no fault in the Applicant proceeding with the reference after the taxing master failed to respond to the request for further reasons. Whether the Taxing Master Erred in Principle 26.The principles governing interference with a taxing master’s discretion are well settled. A judge will not interfere with taxation merely because he or she would have awarded a different figure. 27.In Kiamba v Kimanthi & Another, Environment and Land Misc. Application No. 13B of 2014 [2023], the Court was clear that interference is only warranted where the taxing master acted on an error of principle, failed to take into account relevant considerations, took into account irrelevant considerations, or where the award is so manifestly excessive or low as to justify an inference of error in principle. 28.Similarly, in First American Bank of Kenya Ltd v Shah & 2 others [2002] KEHC 1277 (KLR), the Court (Ringera J – as he then was) stated as follows:“I have considered the above submissions. First, I find that on the authorities, this court cannot interfere with the taxing officer’s decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was so manifestly excessive as to justify an inference that it was based on an error of principle. (See Steel & Petroleum (e.a) Ltd Vs. Uganda Sugar Factory (Supra). Of course. It would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors. And according to the Advocates Remuneration Order itself, some of the relevant factors to take into account include the nature and importance of the cause or matter, the amount or value of the subject matter involved, the interest of the parties, the general conduct of the proceedings and any direction by the trial Judge. Needless to state not all the above factors may exist in any given case and it is therefore open to the Taxing Officer to consider only such factors as may exist in the actual case before him.” 29.In the present case, the central complaint by the Applicant is that the taxing master ought to have applied Schedule 6(1)(f)(i) of the Advocates Remuneration Order relating to winding up proceedings, which prescribes a basic fee of Kshs. 25,200/=, instead of Schedule 6(1)(b). 30.I note from the record that the taxing master considered this argument and held that although Schedule 6(1)(f)(i) had not been formally amended, the value of the subject matter in the insolvency proceedings was ascertainable and therefore Schedule 6(1)(b) was applicable. 31.It is also clear from the record that the underlying matter concerned insolvency proceedings involving a company whose asset value was stated to be Kshs. 73,641,969.54. The Advocate had been instructed to challenge a statutory demand in Insolvency Cause No. E038 of 2021. 32.I am unable to agree with the Applicant that the taxing master committed an error of principle merely by invoking Schedule 6(1)(b). The taxing master considered the nature of the proceedings, the ascertainable value of the subject matter, and the applicable provisions of the Remuneration Order before arriving at her determination. 33.It is now accepted that where the value of the subject matter is ascertainable from the pleadings or record, the same may properly form the basis for assessment of instruction fees. In Joreth Ltd v Kigano & Associates [2002] 1 EA 92, the Court of Appeal held that the value of the subject matter for purposes of taxation ought to be determined from the pleadings, judgment, or settlement. 34.In this case, the taxing master expressly addressed this issue in her ruling and explained why she considered Schedule 6(1)(b) applicable. 35.In Hamilton Harrison & Mathews v Ngengi [2023] KEHC 3759 (KLR), the Court (Mwita J – as he then was), while dealing with a reference based on substantially similar grounds and arguments, stated as follows: -“The client’s argument that the taxing officer should have allowed instruction fee at Kshs 25,200 is not proof that the taxing officer was in error because he took into account the general conduct of the matter and allowed instruction fee of Kshs. 5,000,000.I have gone through the record and note that the proceedings in Misc. Application No. 547 of 2012 were not attached to this reference to enable this court determine whether or not instruction fee allowed was commensurate with the work the advocate did. As it is, the court would be speculating were it to adjudge the taxing officer to have erred in principle.” 36.Equally, in the present case, the Applicant has not demonstrated that the instruction fee awarded was so manifestly excessive as to amount to an error in principle. The taxing master stated that she considered the value of the subject matter, the nature and complexity of the dispute, and the work involved. These are proper considerations in taxation. 37.Accordingly, I find no reason to disturb the assessment by the taxing master. 38.As regards getting up fees, the Applicant contends that the matter neither proceeded to trial nor appeal. However, the question whether getting up fees are payable depends on the extent of preparation undertaken and the stage reached in the proceedings. 39.In Republic v Kenya Medical Supplies Authority & Another; Medox Pharmaceuticals Limited (Interested Party) Ex Parte Nairobi Enterprises Limited [2019] eKLR, it was observed that the matter need not proceed to a full hearing; it is sufficient that it was contested and a denial of liability filed. 40.Further, in Shamsudin Khosla & Others v Kenya Revenue Authority [2011] eKLR, Ojwang J (as he then was), citing Haider bin Mohamed el Mandry & 4 Others v Khadijah Binti Ali Bin Salem alias Bimkubwa [1956] EA 313, stated that getting-up fees compensate the preparatory work undertaken by counsel and are not confined to cases proceeding to full oral hearing. 41.Here, the taxing master exercised her discretion based on the material placed before her. I have not been shown that the discretion was exercised capriciously or on a wrong principle. 42.I accordingly find no error of principle in the award of getting up fees. 43.The challenge to drawings and disbursements equally fails. The taxing master considered the items presented in the Bill and exercised her discretion thereon. A judge sitting on a reference ought not to substitute his or her opinion for that of the taxing master merely because a different conclusion may have been reached. 44.Ultimately, what the Applicant seeks is a re-evaluation of the taxation on merit. That is not the role of this court on a reference unless a clear error of principle is demonstrated. I am not satisfied that such error has been established in this case. 45.The upshot of the foregoing is that the Chamber Summons dated 7th May 2025 lacks merit and is hereby dismissed. 46.The taxation by the taxing master delivered on 25th April 2025 is upheld. 47.The Respondent/Advocate shall have the costs of the reference, which is hereby assessed at Kshs. 50,000/- 48.It is so ordered. DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 28TH DAY OF MAY 2026HON. MR. JUSTICE MOSES ADOJUDGE OF THE HIGH COURTIn the Presence of:Moses C/AKulecho………………for the Client/ApplicantMs. Ojil……………for the Advocate/Respondent