https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7422

Dennis Anyoka Moturi & Co. Advocates v Music Copyright Society of Kenya (Miscellaneous Civil Application E1173 of 2025) [2026] KEHC 7422 (KLR) (Civ) (27 May 2026) (Ruling) Neutral citation: [2026] KEHC 7422 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Miscellaneous Civil Application E1173 of 2025 SN Mutuku, J May 27, 2026 Between Dennis Anyoka Moturi & Co. Advocates Advocate and Music Copyright Society of Kenya Client Ruling The application 1.The subject of this ruling is the Chamber Summons Reference dated 14/01/2026 (the Application) brought by Music Copyright Society of Kenya (hereafter the Applicant) under Rule 11(2) of the Advocates Remuneration Order, 2014. It is supported by the grounds set out on its face and in the affidavit sworn by the Applicant’s Advocate, Musyoka David Vundi on the 230/1/2026. It seeks the following orders:i.That the costs taxed by the Deputy Registrar on the Advocate-Client Bill of Costs dated 4th August 2025 in Milimani HCCC/181/2016 be reviewed and/or set aside.ii.That in the alternative, the matter be remitted with appropriate directions to another Taxing Officer as the Court may deem fit for consideration.iii.That the costs of this Reference be in the cause. 2.The Applicant has, through his counsel, deposed that taxing officer erred in awarding a sum of Kshs. 450,000/- on instruction fees, in respect of an Advocate-Client Bill of Costs filed by Dennis Anyoka Moturi & Co. Advocates (hereafter the Respondent); that the said award was made in the absence of consideration of key factors such as the nature and importance of the cause, the interest of the parties, the general conduct of the proceedings and other relevant factors and that the taxing officer erred in exercising her discretion by estimating an hour per attendance for all court attendances for mentions listed in the Bill of Costs. 3.It is the view of the Applicant that the learned taxing officer ought to have assessed the court attendances for purposes of mentions through an estimation of half an hour per attendance and that the award made by the learned taxing officer is therefore manifestly excessive, erroneous and unjust. The Applicant has urged the court to exercise its discretion in the Applicant’s favour, by allowing the application as prayed. Replying Affidavit 4.The Respondent has opposed the Reference by way of a replying affidavit sworn by Dennis Anyoka Moturi on 27.01.2026 in which it is deposed that the Application is misconceived, frivolous, vexatious and an abuse of the court process; that the learned taxing officer correctly exercised her discretion by assessing the instruction fees at Kshs. 450,000/- after taking into account all relevant factors; that no new material has been tendered before this court to warrant interfering with the assessment on the above item and that the learned taxing officer acted reasonably in assessing the court attendances for mention, given the time taken awaiting the call-out of a matter followed by the time taken by parties and/or their advocates in addressing the court once their matters have been called out. 5.It is the advocate’s averment, therefore, that in assessing the Bill of Costs, the learned taxing officer took into account all relevant factors coupled with the realities of normal court operations and that no basis has been laid before the court to demonstrate that the taxing officer’s assessment on the abovementioned items was erroneous in any manner or that her discretion was wrongfully exercised. 6.For the foregoing reasons, the Respondent has urged that the instant Reference be dismissed with costs and the taxation decision be upheld. Written Submissions 7.The Application was canvassed by way of written submissions. In urging that the Application should be allowed as prayed, the Applicant has cited the decisions in Nyachoti & Company Advocates v Sayani Investment Limited [2021] KEELC 4328 (KLR) and Republic v Commissioner for Cooperative Development & another Ex-Parte County Council of Kiambu [2015] KEHC 7082 (KLR) where the respective courts laid out the instances in which a decision rendered by a taxing officer can be interfered with. 8.The Applicant has further cited the case of Joreth Ltd v Kigano & Associates [2002] KECA 153 (KLR) where the Court of Appeal reasoned that the value of the subject matter ought to be identified from the pleadings, judgment or settlement, and where the same cannot be ascertained, then a taxing officer can exercise his or her discretion in assessing the instruction fees payable, upon taking into account factors such as the nature and importance of the case and the parties’ interests. 9.The Applicant has likewise cited the case of Peter Muthoka & another v Ochieng & 3 others [2019] KECA 597 (KLR) in which the Court of Appeal echoed the above finding, adding that the discretionary power of a taxing officer can only be applied where the value of the subject matter is undeterminable. 10.It is the Applicant’s submissions that in the present instance, while it is undisputed that the value of the subject matter could not be ascertained from the pleadings or other documentation in this matter, the learned taxing officer nevertheless erroneously exercised her discretion in assessing the instruction fees; that learned taxing officer did not adequately consider the nature of the claim and the fact that the Applicant was merely a third party therein and failed to take into account the fact that the parties had agreed on the fees payable and arrived at a sum of Kshs. 290,000/- and therefore the foregoing circumstances did not warrant an excessive award of Kshs. 450,000/-. 11.In opposition to the Application, the Respondent has argued that the assessment undertaken by the learned taxing officer on the instruction fees was guided by the relevant legal principles and that the Applicant has not shown the manner in which the taxing officer erred in her decision or misapprehended the law or awarded a sum that was manifestly high or low. In support of that submission, the Respondent relied on the decision in Premchand Raichand Limited and Another v Quarry Services of East Africa Limited and Another (1972) EA 162 where it was held that a court cannot interfere with the decision of a taxing officer unless it is demonstrated that such decision was based on an error of principle and First American Bank of Kenya Ltd v Shah & 2 others [2002] KEHC 1277 (KLR) which echoes the principles for interfering with a taxation decision. 12.It is the Respondent’s submission that while it is true that the value of the subject matter herein was undiscernible from the pleadings and record, the learned taxing officer took into account all relevant factors in the exercise of her discretion and consequently arrived at a reasonable assessment of the instruction fees; that the suit which gave rise to the taxation proceedings was complex in nature since it involved matters touching on intellectual property law and rights, and thus required sufficient research and effort in litigating the same; that in addition, the said suit took seven (7) years to conclude, thereby requiring extensive work and attention and that the nature and complexity of the proceedings warranted the assessment made on instruction fees. 13.The Respondent submitted, on the issue of court attendances for mention, that it would be unreasonable to assume that mentions last a maximum of half an hour and yet call overs typically tend to run for over an hour and that the learned taxing officer correctly assessed the court attendances for mentions by making an estimation of one hour per attendance. Analysis and Determination 14.I have taken time to carefully read, understand and consider the Application, the Replying Affidavit in opposition and the parties’ submission as well as the authorities relied on. I have taken note of Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd [1972] EA 162 where the court stated the following as pertains to the taxation proceedings:“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 officer, and particularly where he is an officer of great experience, merely because it thinks the award somewhat is too high or too low: it will only interfere if it thinks the award so high or so low as to amount to an injustice to one party or the other.” 15.The Court of Appeal in the foregoing decision laid down the relevant principles to guide the exercise of discretion by taxing officers in the assessment of costs to the effect that:“(a)that costs should not be allowed to rise to such a level as to limit access to the courts to the wealthy only;(b)that a successful litigant ought to be fairly reimbursed for the costs he has had to incur;(c)that the general level of remuneration of advocates must be such as to attract recruits to the profession; and(d)that so far as practicable there should be consistency in the awards made.” 16.Further, courts have considered factors that would trigger the interference of a taxing officer’s decision on appeal. In Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR the Court of Appeal held thus:“On a reference to a judge from the taxation by the Taxing Officer, the judge will not normally interfere with the exercise of discretion by the taxing officer unless the taxing officer, erred in principle in assessing the costs.” 17.An error of principle would include an excessive award on costs or an overemphasis on factors such as the nature and complexity of the matter at hand, with the above legal position being reaffirmed in the case of Moronge & Company Advocates v Kenya Airports Authority [2014] eKLR. 18.From a consideration of the instant Reference, it is clear that the items being challenged are the instruction fees and court attendances for purposes of mentions, respectively. 19.Regarding the instruction fees which constitute item 1, the Respondent by way of its Bill of Costs sought to have the same taxed at a sum of Kshs. 1,470,230/- arising from Civil Suit No. 181 of 2016 (Moffat Achoki Omare v Safaricom Limited & 2 others) (the suit) where the Respondent acted for the Applicant who was a third party. The Applicant on its part proposed that the instruction fees be taxed at a sum of Kshs. 290,000/- being the fees supposedly agreed upon between the parties herein. Upon considering the rival positions, the learned taxing officer taxed the above item at a sum of Kshs. 450,000/- upon considering Schedule 6 of the Advocates Remuneration Order, 2014. 20.In arriving at the above figure, the learned taxing officer reasoned that the value of the subject matter could not be ascertained whether from the pleadings or judgment delivered in the abovementioned suit. This position was affirmed by the parties. 21.The learned taxing officer further reasoned that there was no basis for the sum of Kshs. 1,470,230/- sought by the Respondent, while the Applicant did not tender any material indicating that an agreement had been reached between the parties pertaining to the legal fees. 22.In the circumstances, the learned taxing officer drew guidance from the decision in Joreth Ltd v Kigano & Associates [2002] KECA 153 (KLR), thereby indicating that she had taken into consideration the relevant provisions of the Advocates Remuneration Order alongside the nature and importance of the matter, the interest of the parties and the general conduct of the proceedings. Upon doing so, she deemed a sum of Kshs. 450,000/- as constituting a reasonable assessment of instruction fees in the circumstances. This assessment has been faulted by the Applicant to the effect that the taxing officer committed an error of principle and arrived at an unjustifiably high figure. 23.Upon my consideration of the record, I have noted that there is no dispute that the suit was filed before the High Court-Civil Division. Consequently, the applicable provision of the Advocates Remuneration Order, 2014 is Schedule 6 which was correctly applied by the learned taxing officer, and which caters to costs in respect of proceedings in the High Court. I have also noted that it is not controverted that in the present instance, the value of the subject matter was not discernible from the pleadings or other material on record. In such instances, the legal position is that a taxing officer is permitted to exercise his or her discretion in taxing the instruction fees, as stated by the Court of Appeal in Peter Muthoka & another v Ochieng & 3 others [2019] KECA 597 (KLR), where the Court stated that:“It seems to us quite plain that the basis for determining subject matter value for purposes of instruction fees is wholly dependent on the stage at which the fees are being taxed. Where it happens before judgment, it is the pleadings that form the basis for determining subject value. Once judgment has been entered, and for what seems to us to be an obvious reason, recourse will not be had to the pleadings since the judgment does determine conclusively the value of the subject matter as a claim, no matter how pleaded, gets its true value as adjudged by the court.Where, however, a suit is settled, then, from a literal and practical reading of the provision, the subject matter value must be sought by reference, in the first instance, to the terms of the settlement. Just as one would not start with the pleadings in the face of a judgment, it is indubitable that one cannot start with the pleadings where there is a settlement.It is only where the value of the subject matter is neither discernible nor determinable from the pleadings, the judgment or the settlement, as the case may be, that the taxing officer is permitted to use his discretion to assess instructions fees in accordance with what he considers just bearing in mind the various elements contained in the provision we are addressing. He does have discretion as to what he considers just but that discretion kicks in only after he has engaged with the proper basis as expressly and mandatorily provided: either the pleadings, the judgment or the settlement. He has no leeway to disregard the statutorily commanded starting point. And we think, with respect, that the starting point can only be one of the three. It is not open to the taxing officer to choose one or the other or to use them in combination, the provision being expressly disjunctive as opposed to conjunctive. It is also mandatory and not permissive.What we have said is in direct harmony with what this Court stated in Joreth Limited -vs- Kigano & Associates [2002] IEA 92,………..” 24.The question therefore remains whether the learned taxing officer took into account the relevant factors laid out in the just-cited case, in the exercise of her discretion. 25.From my review of the impugned taxation ruling, I have observed that the learned taxing officer not only placed reliance on the above-cited decisions in Peter Muthoka & another v Ochieng & 3 others and Joreth Ltd v Kigano & Associates cases, but went ahead to consider the various factors set out in the respective binding authorities, in assessing the instruction fees. Furthermore, upon my review of the impugned ruling on taxation, I have observed that the learned taxing officer elaborated the manner in which she arrived at the assessed figure. 26.Having carefully considered the issues being raised in this matter, it is my finding, and I concur with the learned taxing officer’s finding, that the Applicant did not tender any material to support its averment that the parties had previously agreed on the legal fees payable to the Respondent. 27.I have not come across any evidence demonstrating that the learned taxing officer wrongly exercised her discretion or neglected to consider any of the relevant factors set out above, in making her assessment or that the assessment made on the instruction fees is so manifestly excessive as to necessitate my interfering with the findings of the taxing officer. 28.In respect of the issue on court attendances for mentions, I have considered items 13, 20, 24, 35, 37, 39, 40, 41, 45, 46, 47, 52, 54 and 57 in the Bill of Costs. On the one part, the Respondent sought a sum of Kshs. 3,000/- under each of the listed items. On the other part, the Applicant proposed an assessment of Kshs. 1,100/- under each item listed above, based on the argument that the same should be treated as attendances for half an hour or less. 29.In her ruling, the learned taxing officer reasoned that it was highly unlikely that every attendance for mention and hearing lasted less than half an hour. In her estimation, the call over for mentions would last an average of one hour per attendance. On that basis, she proceeded to apply the higher scale of the Advocates Remuneration Order, upon taking into account the fact that the suit was defended. Resultantly, the learned taxing master proceeded to assess the respective items at a sum of Kshs. 3,000/- as per Schedule 6A(7) of the Remuneration Order. 30.The afore-cited Paragraph 7 of Schedule 6 lists the assessments for attendances, categorized under the ordinary scale and higher scale. The attendances for half an hour or less are assessed at Kshs. 1,100/- and Kshs. 1,900/- for the ordinary and higher scales respectively; the attendances for one hour are assessed at Kshs. 2,300/- and Kshs. 3,000/- for the ordinary and higher scales respectively; while the attendances for a full day are assessed at Kshs. 10,000/- and Kshs. 15,000/- for the ordinary and higher scales respectively. 31.Upon my consideration of the foregoing assessment scales alongside the assessments made by the learned taxing officer on this issue, I am satisfied that in making her assessment, the learned taxing officer reasonably applied the provisions of Schedule 6, Paragraph 7 of the Advocates Remuneration Order and explained her reasons for applying the higher scale as opposed to the ordinary scale. I am satisfied that both her reasoning and assessment of the above items are justifiable in the circumstances. 32.Consequently, I similarly see no reason to disturb the assessments made on the above-listed items pertaining to the court attendances for mentions. For the above reasons I find the Chamber Summons Reference dated 14/01/2026 to be lacking in merit and I hereby dismiss it, with costs to the Advocate/Respondent. 33.It is so ordered. DATED, SIGNED AND DELIVERED THIS 27TH DAY OF MAY, 2026.S. N. MUTUKUJUDGE