https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7522

B.N Kotecha & Sons Limited v Tom Ojienda & Associates (Miscellaneous Application E935 of 2024) [2026] KEHC 7522 (KLR) (Commercial and Tax) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7522 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Miscellaneous Application E935 of 2024 MO Ado, J May 28, 2026 Between B.N Kotecha & Sons Limited Applicant and Prof. Tom Ojienda & Associates Respondent Ruling 1.The Applicant filed the present reference by way of the Chamber Summons dated 7th May 2025 arising from the Advocate-Client Bill of Costs dated 5th November 2024 and was filed with the Deputy Registrar and drawn at a total of Kshs. 11,000,607.40/=. 2.The Bill arose from instructions received by the Respondent from the Applicant to represent the latter in Commercial Cause No. E209 of 2021. The Bill covers the period between 5th July 2022 and 5th November 2024. 3.The Deputy Registrar thereafter proceeded to tax the Bill and delivered her ruling on 25th April 2025, in which she taxed the Bill at Kshs. 7,520,607/=. 4.Being aggrieved by the decision of the Deputy Registrar, the Applicant/Client, wrote to the Deputy Registrar vide a letter dated 29th April 2025, giving notice of objection to the taxation in respect of Items 1, 2, 13, 16, 20, 21, 26, 28, 36, 40, 46, 48, 53, 54, 58 and Disbursements, and seeking further reasons for the Deputy Registrar's decisions on those items pursuant to Paragraph 11(1) and (2) of the Advocates (Remuneration) Order. The Deputy Registrar did not respond to the letter. 5.Notwithstanding the absence of a response, the Applicant/Client proceeded to file the present reference by way of a Chamber Summons dated 7th May 2025. The Chamber Summons seeks orders that the decision of the Taxing Master delivered on 25th April 2025 be set aside and the Bill re-taxed by the Court, or in the alternative, that the matter be remitted for re-taxation before a different Taxing Officer/Deputy Registrar. The application is supported by a supporting affidavit sworn by Benson Nzuka, a director of the Applicant/Client. 6.The Respondent/Advocate opposes the reference through the replying affidavit of Prof. Tom Ojienda, S.C., sworn on 27th May 2025, and both parties have filed written submissions which I have carefully considered. Summary Of The Applicant/Client's Submissions 7.The Applicant/Client raises two broad grounds in support of the reference. On the procedural competence of the reference, the Client argues that the reference is properly before the Court despite the Taxing Master not having furnished reasons in response to the letter of 29th April 2025. The Applicant/Client relies on the proposition that where the ruling of the Taxing Master is comprehensive and contains reasons on its face, seeking further reasons becomes a formality rather than a substantive prerequisite. 8.The Applicant/Client relies on National Oil Corporation Limited v Real Energy Limited & Another [2016] eKLR and Evans Thiga Gaturu v Kenya Commercial Bank Limited [2012] eKLR, which decisions stand for the principle that no magic attaches to the requirement to seek reasons where those reasons are already apparent in the face of the ruling. The Applicant/Client further urges that the Taxing Master’s failure to respond to the notice of objection should not be visited upon the Client, relying on Muriu Mungai & Co Advocates v New Kenya Co-Operative Creameries Ltd [2008] KEHC 2091 (KLR) and Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR. 9.On the merits, the Client submits that the Taxing Master erred in principle in several respects. First, regarding instruction fees (Item 1), the Client contends that at the time the Bill of Costs was filed on 12th November 2024, no defence had been formally filed in Commercial Cause No. E209 of 2021. The Applicant/Client argues that what existed was a draft defence, marked as exhibit in an application dated 14th April 2023 seeking leave to file a defence, which application had not been heard and determined as at the filing date of the Bill of Costs. 10.Accordingly, the Client submits that instruction fees ought to have been assessed under Schedule 6(1)(a) of the Advocates Remuneration Order which would have yielded basic instruction fees of Kshs. 1,326,770.44/=, rather than under Schedule 6(1)(b) as the Taxing Master found. The Applicant/Client further takes issue with the increase of the instruction fees from the basic sum to Kshs. 3,000,000/=, arguing that the Taxing Master offered no adequate justification for the enhancement, the matter was straightforward, the suit had not been certified ready for hearing, and no evidence of complexity was placed before the Taxing Master. 11.Second, on getting up fees (Item 2), the Client submits that the Taxing Master erred in awarding getting up fees of Kshs. 1,000,000/= because, in terms of Schedule 6(2) of the Advocates Remuneration Order, getting up fees only accrue where a case has been certified ready for hearing, which condition had not been met in the primary suit. The Applicant/Client relies on P.I. Samba & Company Advocates v Bundotich & Another [2024] KEHC 4715 (KLR) for this proposition. 12.Third, on drawings (Items 21, 28, 36, 40 and 54), the Client contends that the Taxing Master wrongly included lists of authorities within the computation of drawing fees, as authorities fall under copies and not drawings under Paragraph 4(a) of Schedule 6. Fourth, on court attendances (Items 13, 16, 20, 26, 46, 48, 53 and 58), the Client argues that Items 13 and 16 related to days when the court was not sitting, while Items 20, 26, 46, 48, 53 and 58 were ordinary mentions that did not attract the higher scale of fees. 13.Finally, on disbursements, the Client submits that the Taxing Master erred in allowing Kshs. 250,000/= as disbursements without receipts or vouchers having been produced as proof of expenditure, contrary to the Kithi & Co. Advocates v Greenwoods Limited [2022] precedent which the Taxing Master herself cited. Summary of the Respondent/Advocate's Submissions 14.The Respondent/Advocate, opposes the reference on both procedural and substantive grounds. On the procedural issue, the Advocate submits that the reference is premature and incurably defective because the Client did not await the Taxing Master’s written reasons before filing the Chamber Summons, in violation of the mandatory provisions of Order 11(2) of the Advocates Remuneration Order. 15.The Respondent/Advocate relies on Magdalena Alphonce Cheposowor v Cheposupko Lonyareng & 5 others [2021] eKLR and Ms Advocates LLP v China Wu Yi (Kenya) Company Limited [2023] eKLR, which decisions held that a reference can only properly lie once the Taxing Master has provided written reasons and the aggrieved party has had sight of them. The Respondent/Advocate submits that, having elected to request reasons, the Applicant/Client was bound to await them and cannot now sidestep this requirement by characterising the ruling as self-explanatory. 16.On the merits, the Respondent/Advocate submits that the Taxing Master committed no error of principle in any of the disputed items, and that the Client has merely expressed dissatisfaction with the quantum awarded, which is an insufficient basis for this Court’s interference. 17.On instruction fees, the Advocate contends that the defence dated 11th November 2024 was duly filed in the primary suit, and the Taxing Master was therefore correct to apply Schedule 6(1)(b). The Respondent/Advocate further submits that the increase of the basic instruction fee from Kshs. 1,419,270.44/= to Kshs. 3,000,000/= was a proper exercise of the Taxing Master’s discretion, informed by the gravity of the suit, where the Applicant/Client faced a claim of over Kshs. 81 million, the complexity of the matter, the intensive research undertaken and the length of papers involved. 18.The Respondent/Advocate relies on Premchand Raichand Ltd and another v Quarry Services of East Africa Ltd and another for the principle that the Taxing Master has a broad discretion in determining instruction fees. 19.On getting up fees, the Respondent/Advocate argues that the defence was filed and there was a denial of liability, entitling the Advocate to fees for getting up and preparing for trial. On drawings, the Respondent/Advocate maintains the drawings were properly computed to scale under Schedule 6(A)(4). 20.On court attendances, the Respondent/Advocate attaches court attendance sheets evidencing that the sessions lasted an hour, justifying the amounts claimed. 21.On disbursements, the Respondent/Advocate relies on the case of Kithi & Co. Advocates v Greenwoods Limited [2022] to submit that the Taxing Master was satisfied the disbursements were proved, and this Court should not disturb that factual finding. Issues For Determination 22.Having carefully considered the pleadings and submissions of both parties, I am of the view that the following issues arise for determination in this reference:a.Whether the reference is properly before this Court or is premature and incurably defective for want of compliance with Order 11(2) of the Advocates Remuneration Order.b.Whether the Taxing Master erred in principle in applying Schedule 6(1)(b) of the Advocates Remuneration Order to the computation of instruction fees.c.Whether the Taxing Master erred in principle in increasing the basic instruction fees from Kshs. 1,419,270.44/= to Kshs. 3,000,000/=.d.Whether the Taxing Master erred in principle in awarding getting up fees of Kshs. 1,000,000/=.e.Whether the Taxing Master erred in the taxation of drawings, court attendances and disbursements. Analysis And Determination 23.I now turn to consider each of the foregoing issues in turn, guided by the principle that in a reference from the decision of a Taxing Officer, this Court will not ordinarily interfere with the exercise of the Taxing Officer’s discretion unless it is demonstrated that the Taxing Officer erred in principle in the assessment of costs. Where there has been an error in principle, the Court will interfere; but questions solely of quantum are regarded as matters for which the Taxing Officer is particularly fitted by experience, and the Court will interfere only in exceptional cases. 24.This was the position set out in Republic v Minister for Agriculture & 2 others Ex-parte Samuel Muchiri W'Njuguna & 6 others [2006] KEHC 3504 (KLR) where it was held theat:“The taxation of costs is not a mathematical exercise; it is entirely a matter of opinion based on experience. A court will not, therefore, interfere with the award of a taxing ocer, particularly where he is an ocer of great experience, merely because it thinks the award is somewhat too high or too low; it will only interfereif it thinks theaward is so high or so low as to amount to an injusticeto one party or the other…. The court cannot interfere with the taxing ocer’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. Of courseit would bean error of principleto take into account irrelevant factors or to omit to consider relevant factors.” 25.On the first issue, the Respondent/Advocate raises what it characterises as a fatal procedural objection. Order 11(2) of the Advocates Remuneration Order provides that upon receipt of an objection notice, the Taxing Officer shall forthwith record and forward to the objector the reasons for the decision on the disputed items, and the objector may within fourteen days of receipt of those reasons apply to a Judge by Chamber Summons. The Respondent/Advocate argues that because the Applicant/Client did not receive reasons before filing the reference, the reference is premature and incurably defective. 26.There is undoubted merit in the general proposition advanced by the Advocate, and the authorities cited by it are sound. The regime under Order 11 is designed to ensure that when a party comes before the court, the court has the benefit of understanding the reasoning of the Taxing Officer so as to identify whether an error of principle was committed. 27.However, the question that confronts the Court is not as absolute as the Advocate would have it. This Court has consistently held that the requirement to seek reasons becomes otiose where the ruling of the Taxing Officer is comprehensive and contains, on its face, the reasons for the decision taken on the disputed items. In National Oil Corporation Limited v Real Energy Limited [2016] eKLR and Robert Maua t/a Mauwa & Company Associates v JRS Group Limited [2023] KEHC 20862 (KLR), this Court held that no magic attaches to seeking reasons where those reasons are already apparent from the ruling itself. 28.In the present case, I have had occasion to peruse the ruling of Hon. Chembeni L. Adisa dated 25th April 2025. I observe that the ruling is detailed and self-contained; it sets out the applicable legal provisions, the competing positions of the parties, and the Taxing Master’s analysis and reasoning in respect of each item taxed. 29.The Applicant/Client’s advocates wrote to the Deputy Registrar seeking further reasons (if any), language which itself acknowledges that reasons may already exist in the ruling. In those circumstances, I am satisfied that the reference is not premature, and I decline to strike it out on the procedural ground raised by the Advocate. 30.Turning to the second and third issues, the applicable schedule for instruction fees and the enhancement thereof, the Applicant/Client’s primary contention is that the Taxing Master misapplied the law by using Schedule 6(1)(b) when Schedule 6(1)(a) ought to have applied, on the basis that no defence had been filed at the time the Bill of Costs was lodged. 31.The Taxing Master, upon perusing the court record, found that a defence dated 14th April 2023 was on record. The Applicant/Client disputes this, arguing that what was filed on that date was a draft defence attached as an exhibit to an application for leave to file a defence, and that the application itself had not been determined as at the filing date of the Bill of Costs on 12th November 2024. 32.I have considered this issue with care. The undisputed evidence is that the Advocate filed an application dated 14th April 2023 seeking leave to file the defence. The matter was scheduled for highlighting of submissions on 7th November 2024. Subsequently, the application was allowed and the Advocate filed the defence dated 11th November 2024, one day before the Bill of Costs was filed on 12th November 2024. 33.By the time the Bill of Costs was lodged with the court, a defence had in fact been filed. The Taxing Master’s reference to a defence dated 14th April 2023 appears to conflate the draft defence with the date of the formal application, but the substantive finding that a defence was on record is accurate as of the date the Bill was filed. 34.I therefore find no error of principle in the Taxing Master’s application of Schedule 6(1)(b) of the Advocates Remuneration Order, as a defence had been filed and a denial of liability had been entered. Whether the Enhancement of Instruction Fees was Justified 35.On the enhancement of instruction fees, the Taxing Master computed the basic instruction fee under Schedule 6(1)(b) at Kshs. 1,419,270.44/= and then proceeded to enhance it to Kshs. 3,000,000/=, citing the value of the subject matter, the importance of the matter, the interests of the parties, the complexity of the proceedings, the research involved, and the preparation required. 36.It is settled that a Taxing Master exercises a wide discretion in determining and, where appropriate, enhancing instruction fees. Such discretion is guided by the nature and importance of the matter, the value of the subject matter, the complexity of the issues involved, the interests of the parties, the volume of documentation, the time expended and all other relevant circumstances of the case. 37.In Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd & Another [1972] EA 162, the Court observed that costs should not be so low as to amount to an injustice to the successful advocate nor so high as to confine access to justice only to the wealthy. The assessment of instruction fees is therefore ultimately an exercise of judicial discretion by the Taxing Officer. 38.I have carefully considered the reasons given by the Taxing Master for enhancing the instruction fees. The ruling shows that the Taxing Master took into account the value of the subject matter, which exceeded Kshs. 81 million, the importance of the dispute to the parties, the nature of the pleadings filed, the volume of documents involved, and the preparation undertaken by counsel. 39.Although the Applicant/Client contends that the matter had not proceeded to full hearing, that fact alone does not disentitle an advocate from enhanced instruction fees. Instruction fees are earned upon the advocate being instructed and encompass the responsibility undertaken in defending the client’s interests in the suit. The stage ultimately reached in the proceedings is only one of the factors to be considered and is not decisive. 40.Further, the Court must be slow to interfere with the exercise of discretion by a Taxing Master merely because it would itself have arrived at a different figure. Interference is only warranted where the award is shown to have been based on an error of principle or to be manifestly excessive. 41.In the present case, I am unable to say that the enhancement from Kshs. 1,419,270.44/= to Kshs. 3,000,000/= was so excessive as to amount to an injustice or to demonstrate that the Taxing Master acted on a wrong principle. The amount awarded bears a reasonable relationship to the value and importance of the dispute and falls within the permissible ambit of the Taxing Master’s discretion. 42.I therefore find no error of principle in the enhancement of the instruction fees and I decline to interfere with Item 1 as taxed by the Taxing Master. Whether the Award of Getting Up Fees was Proper 43.The Applicant/Client contends, relying on P.I. Samba & Company Advocates v Bundotich & Another [2024] KEHC 4715 (KLR), that getting up fees are only chargeable where a case has been certified ready for hearing, a condition that was not met here. 44.The Respondent/Advocate, on the other hand, relies on C.N. Kihara & Company Advocates v Maendeleo Ya Wanawake Organization (MYWO) [2021] eKLR and Republic v Kenya Medical Supplies Authority & Another; Ex parte Nairobi Enterprises Limited [2019] eKLR for the proposition that what is required is a denial of liability, not a full hearing with viva voce evidence. 45.Schedule 6(2) of the Advocates Remuneration Order provides that in any case in which a denial of liability is filed or in which issues for trial are joined by the pleadings, a fee for getting up and preparing the case for trial shall be allowed. The language of the provision does not make the certification of a matter for hearing a prerequisite; rather, the triggering event is the filing of a denial of liability or the joining of issues by the pleadings. 46.In the present case, a defence was filed on 11th November 2024, thereby constituting a denial of liability. The Respondent/Advocate is therefore entitled to getting up fees as a matter of right under the Order. 47.Further, as this Court observed in Republic v Kenya Medical Supplies Authority [supra], the matter need not proceed to a full hearing; it is sufficient that it was contested and a denial of liability filed. 48.I accordingly find no error of principle in the award of getting up fees. Drawings, Attendances and Disbursements 49.On drawings, the Applicant/Client contends that lists of authorities were improperly charged as drawings rather than copies. 50.I have reviewed the impugned items, and I am not satisfied that the Applicant/Client demonstrated any duplication or double charging before the Taxing Master. The Taxing Master considered the relevant folios and taxed the items under Schedule 6(A)(4). 51.I therefore find no basis for interfering with the taxation of the drawing items. 52.Regarding court attendances, the Applicant/Client argues that some attendances related to dates when the court was not sitting, while others were ordinary mentions. 53.The Respondent/Advocate has exhibited attendance sheets showing that counsel attended before the court or registry for purposes connected with the progress of the matter. Such attendances are compensable under the Advocates Remuneration Order. 54.Further, the attendance notes placed before the Taxing Master indicated that some of the attendances lasted for periods justifying taxation at the scale adopted. 55.I therefore find no error of principle in the taxation of the attendance items. 56.On disbursements, I agree with the Applicant/Client that, as a matter of good practice, advocates ought to place receipts and vouchers before the Taxing Officer in proof of expenditure. 57.Nonetheless, the Taxing Master made a factual finding that the disbursements had been proved. While the evidentiary basis may have been less than satisfactory, I am not persuaded that the finding rises to the level of an error of principle warranting interference on a reference. 58.Accordingly, I find no merit in the reference dated 7th May 2025, and the same is hereby dismissed. 59.The taxation by the Taxing Master delivered on 25th April 2025 is hereby upheld in its entirety. 60.The Respondent/Advocate shall have the costs of the reference, which is hereby assessed at Kshs. 50,000/-. 61.It is so ordered. DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 28TH DAY OF MAY 2026HON. MR. JUSTICE MOSES ADO Judge of the High CourtIn the Presence of:Moses C/AKulecho………………for the Client/ApplicantMs. Ojil……………for the Advocate/Respondent