https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6844

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAROK** **HCCCMISC. NO. E012 OF 2025** **(CORAM: HON. CHARLES M. KARIUKI – J)** **E. KINYANJUI & CO. ADVOCATES ……………………. ADVOCATE/APPLICANT** **-VERSUS** **SOLZA LIMITED………………….……………………………. CLIENT/RESPONDENT** **RULING** 1. **INTRODUCTION AND BACKGROUND** 2. Before this court are two interrelated applications arising from the taxation of an Advocate-Client Bill of Costs filed by the Advocate/Applicant, E. Kinyanjui & Co. Advocates, against its former client, Solza Limited. The dispute concerns the propriety of the taxation ruling delivered on 13th November 2025 in respect of the Advocate/Applicant’s Bill of Costs dated 24th March 2025, together with the resultant Certificate of Taxation issued on 27th November 2025. 3. The Advocate/Applicant had acted for the Client/Respondent in Narok Chief Magistrate’s Court Civil Case No. E098 of 2023, namely *Francis Gachanja Kairu & David Njoroge Kairu (Legal Representatives of the Estate of Joseph Gachanja – Deceased) v Brian Kairu Ng’ang’a & Solza Limited*. The instructions arose from a road traffic claim in which Solza Limited had been joined as the 2nd Defendant. Upon being instructed, the Advocate/Applicant entered an appearance on behalf of the Client/Respondent and subsequently filed an application dated 29th September 2023 seeking to strike out Solza Limited from the proceedings on the basis that it was merely a financier and not liable in the suit. The application was eventually allowed on 31st January 2024, and the suit against Solza Limited was marked as withdrawn. 4. Following the conclusion of the Advocate/Applicant’s retainer, the Advocate/Applicant filed an Advocate-Client Bill of Costs dated 24th March 2025 seeking taxation of legal fees allegedly due from the Client/Respondent. The Bill of Costs was taxed by the Deputy Registrar in a ruling delivered on 13th November 2025, resulting in taxation of Kshs. 182,480/= and issuance of a Certificate of Taxation dated 27th November 2025. 5. Aggrieved by the taxation, the Client/Respondent filed references dated 2nd and 5th December 2025, challenging the taxing officer’s decision principally because the taxing officer erred in principle in assessing instruction fees. The Client/Respondent contended that the Advocate/Applicant’s instructions were limited to filing and prosecuting the application seeking the striking out of Solza Limited from the subordinate court proceedings and did not extend to defending the substantive suit. It was further contended that the taxing officer improperly relied on the judgment sum in the subordinate court proceedings even though Solza Limited had already been struck out of the suit before judgment was delivered. According to the Client/Respondent, the only ascertainable value from the pleadings at the time it exited the proceedings was the pleaded special damages of Kshs—35,050/= and not the eventual judgment amount. The Client/Respondent therefore urged the court to set aside the taxation and remit the bill for re-taxation. 6. On the other hand, the Advocate/Applicant maintained that the taxation was lawful, proper, and consistent with the Advocate's Remuneration Order. The Advocate/Applicant contended that the taxing officer properly exercised discretion in assessing instruction fees after considering the pleadings, the value of the motor vehicle involved in the subordinate court proceedings, and the judgment eventually entered in the suit. It was further asserted that the striking out of the Client/Respondent from the proceedings did not extinguish the Advocate/Applicant’s entitlement to instruction fees and costs lawfully incurred in the course of representation. 7. Concurrently with the reference, the Advocate/Applicant filed a Notice of Motion dated 20th January 2026 under Section 51(2) of the Advocates Act seeking entry of judgment against the Client/Respondent for the taxed sum of Kshs. 182,480/= together with interest at the rate of 14% per annum pursuant to Rule 7 of the Advocates Remuneration Order. The Advocate/Applicant argued that the Certificate of Taxation remained valid and enforceable and that the Client/Respondent had failed to settle the taxed costs despite service and demand. 8. The Client/Respondent opposed the application for entry of judgment on the basis that the taxation itself had been challenged through a competent reference, which was still pending determination before the court. It was therefore contended that entry of judgment would be premature and prejudicial before the court had pronounced itself on the validity of the taxation. 9. The court directed that both the reference and the Notice of Motion be canvassed together by way of written submissions, which the parties duly filed. The court now proceeds to determine the issues arising from the two applications. 10. **PLEADINGS** 11. **Chamber Summons dated 2nd December 2025** 12. The Client/Respondent, Solza Limited, filed a Chamber Summons dated 2nd December 2025 under Rule 11(2) and (4) of the Advocates (Remuneration) Order seeking, inter alia, stay of execution of the ruling delivered on 13th November 2025 and the resultant Certificate of Costs dated 27th November 2025 pending the hearing and determination of the reference. The Client/Respondent further sought orders setting aside the decision of the taxing officer in Narok HCCC Misc. Application No. E012 of 2025 and remitting the Advocate/Applicant’s Bill of Costs dated 24th March 2025 for re-taxation before a different taxing officer. In the alternative, the Client/Respondent prayed that the court re-tax item 1 of the bill afresh at a reasonable amount. The application also sought leave for the firm of Shisanya & Company Advocates to come on record after delivery of the ruling and costs of the application. 13. The application was premised because the taxing officer erred in principle in assessing instruction fees by failing to consider the proceedings and record in Narok MCCC No. E098 of 2023, namely Francis Gachanja Kairu & David Njoroge (Legal Representatives of the Estate of Joseph Gachanja – Deceased) vs Brian Kairu Ng’ang’a & Solza Limited. The Client/Respondent contended that the Advocate/Applicant was only instructed to enter an appearance and file an application seeking the striking out of Solza Limited from the suit on the basis that it was merely a financier. It was asserted that the Advocate/Applicant neither filed a defence nor participated in substantive proceedings after the application for striking out was allowed on 31st January 2024. According to the Client/Respondent, the taxing officer wrongly treated the matter as though the Advocate/Applicant had defended the entire suit and consequently awarded inflated instruction fees. It was further contended that the taxing officer improperly relied on the value reflected in the judgment of the subordinate court even though Solza Limited had already been struck out of the proceedings before judgment was delivered. The Client/Respondent maintained that the only ascertainable value from the pleadings at the time it exited the suit was Kshs. 34,500/= being special damages pleaded. The Client/Respondent also faulted the taxing officer for allegedly misidentifying the subject value and erroneously applying VAT on instruction fees, thereby rendering the taxation unjust and contrary to the principle that advocates are entitled only to reasonable remuneration for work actually done. 14. **The Supporting Affidavit sworn on 2nd December 2025.** 15. The application was supported by the affidavit of Michael Wanganga, sworn on 2nd December 2025. He deponed that he was the Country Manager of the Client/Respondent and was conversant with the facts of the matter. He stated that the Advocate/Applicant’s Bill of Costs dated 24th March 2025 had been taxed and a ruling delivered on 13th November 2025, following which the Advocate/Applicant commenced execution proceedings by obtaining a Certificate of Taxation. He further deponed that the Client/Respondent had objected to the taxation through a letter dated 24th November 2025, requesting reasons for the taxation. 16. Mr Wanganga reiterated that the taxing officer failed to properly appreciate the limited scope of the Advocate/Applicant’s instructions. He explained that Solza Limited instructed the Advocate/Applicant solely to enter appearance and seek the striking out of the subordinate court proceedings, since it was merely a financier of the motor vehicle involved in the accident. He annexed copies of the Memorandum of Appearance, the application dated 29th September 2023 seeking striking out, and the orders issued on 31st January 2024 allowing the application and marking the suit against Solza Limited as withdrawn. He deponed that apart from entering an appearance, filing the application, and attending court on 29th November 2023 and 31st January 2024, the Advocate/Applicant undertook no further work in the matter, including filing a defence or participating in trial proceedings. According to the deponent, the Advocate/Applicant was therefore only entitled to reasonable fees for prosecuting the striking-out application, and not to fees calculated on the value of the entire suit. He maintained that the taxing officer’s assessment was grossly excessive, unjust, and founded on wrong principles, thereby necessitating interference by the court through setting aside the taxation and ordering re-taxation before another taxing officer. 17. **The Replying Affidavit sworn on 20th January 2026** 18. The Advocate/Applicant opposed the Client/Respondent’s application through a Replying Affidavit sworn on 20th January 2026 by Kevin Michuki, an advocate of the High Court of Kenya, having conduct of the matter on behalf of the Advocate/Applicant. He deponed that he had read and considered the Client/Respondent’s application. He opposed it because it was misconceived, frivolous, vexatious, and an abuse of the court process. He asserted that the application was founded on falsehoods and material non-disclosure, and failed to establish any prima facie basis or exceptional circumstances warranting the court's intervention. 19. The deponent further averred that the Client/Respondent was merely employing delay tactics aimed at frustrating the enforcement of valid court orders and avoiding settlement of the taxed costs. He stated that the Certificate of Taxation issued in favour of the Advocate/Applicant remained wholly unsatisfied and that the Client/Respondent had neither settled the taxed amount nor demonstrated any effort towards partial payment despite court directions. According to the deponent, the Advocate/Applicant was lawfully entitled to commence execution proceedings upon issuance of the Certificate of Taxation. 20. On the prayer for stay of execution, Mr Michuki maintained that the Client/Respondent had not satisfied the legal requirements for the grant of a stay and had not complied with court directions. He further deponed that the directors of the Client/Respondent were foreign nationals and might not be readily traceable for the purposes of enforcing any decree, thereby exposing the Advocate/Applicant to prejudice. Nonetheless, he stated that the Advocate/Applicant would consent to a stay of execution only on the condition that the entire decretal amount be deposited in a joint interest-earning account in the names of the advocates for the parties. 21. Regarding the taxation, the deponent asserted that the value of the subject matter for purposes of taxation was ascertainable from the pleadings and supporting documents and not limited to the special damages pleaded. He explained that the Advocate/Applicant had acted for the Client/Respondent in proceedings involving a motor vehicle valued at Kshs. 1,250,000/=. He annexed an insurance valuation report showing the value of the motor vehicle and contended that the Client/Respondent’s reliance on the pleaded sum of Kshs. 35,050/= as the subject value was erroneous since that amount merely represented special damages and did not reflect the true value of the subject matter. 22. Mr Michuki further deponed that the Advocate/Applicant’s Bill of Costs dated 24th March 2025 was properly drawn pursuant to the advocate-client relationship between the parties and that, after considering the parties’ submissions, the taxing officer lawfully taxed the bill at Kshs. 99,972/= in accordance with the Advocates (Remuneration) Order. He maintained that the instruction fees awarded were neither excessive nor disproportionate, given the value of the motor vehicle involved in the subordinate court proceedings. He further asserted that if the Client/Respondent disputed the valuation of the motor vehicle, it ought to have produced a separate valuation report before the taxing officer, which it failed to do. 23. The deponent also rejected the argument that the Client/Respondent was not a party to the subordinate court proceedings, stating that Solza Limited had been duly joined as the 2nd Defendant and remained bound by the pleadings and proceedings despite subsequently being struck out. He averred that although no defence had been filed on behalf of the Client/Respondent, that fact did not extinguish the Advocate/Applicant’s entitlement to instruction fees and costs lawfully incurred in the course of representation. He further maintained that the striking out of the Client/Respondent from the proceedings did not affect the Advocate/Applicant’s right to claim instruction fees as counsel properly on record at the material time. 24. On the issue of VAT, the deponent contended that VAT was properly chargeable on instruction fees since such fees constituted taxable income under the applicable tax framework. He therefore maintained that the taxation was lawful, justified, and properly undertaken in accordance with the Advocates (Remuneration) Order. Consequently, he urged the court to dismiss the Client/Respondent’s application with costs. 25. **Notice of Motion dated 20th January 2026** 26. The Advocate/Applicant, E. Kinyanjui & Co. Advocates, filed a Notice of Motion dated 20th January 2026 under Section 51(2) of the Advocates Act, Rule 7 of the Advocates Remuneration Order, and Order 51 Rule 1 of the Civil Procedure Rules seeking judgment against the Client/Respondent, Solza Limited, for the sum of Kshs. 182,480/= being taxed costs certified by the Deputy Registrar on 27th November 2025. The Advocate/Applicant further sought interest on the said sum at the rate of 14% per annum from 26th April 2025, being one month after service of the Bill of Costs upon the Client/Respondent, until payment in full. The application also prayed for costs. 27. The application was grounded on the contention that the Advocate/Applicant’s Bill of Costs dated 24th March 2025 had been duly taxed by the Deputy Registrar through a ruling delivered on 13th November 2025, resulting in taxation in the sum of Kshs. 182,480/=. It was averred that a Certificate of Taxation was subsequently issued on 27th November 2025 in accordance with the Advocates (Remuneration) Order and that the taxed costs represented fees properly incurred by the Advocate/Applicant in representing the Client/Respondent in Narok MCCC No. E098 of 2023, namely Francis Gachanja Kairu & David Njoroge Kairu (Legal Representatives of the Estate of Joseph Kairu Gachanja – Deceased) vs Brian Kairu Ng’ang’a & Solza Limited. The Advocate/Applicant maintained that there was no dispute regarding the existence, correctness, or enforceability of the taxed amount and contended that the Client/Respondent had failed, neglected, and refused to satisfy the taxed costs despite court directions. It was therefore argued that the continued non-payment frustrated the Advocate/Applicant’s lawful entitlement to costs, thereby necessitating entry of judgment together with interest and costs. 28. **Supporting affidavit sworn on 20th January 2026** 29. The application was supported by the affidavit of Kevin Michuki, sworn on 20th January 2026. The deponent stated that he was an advocate of the High Court of Kenya and competent to swear the affidavit on behalf of the Advocate/Applicant. He deponed that the affidavit was sworn in support of the application seeking enforcement of the Certificate of Taxation issued following the ruling on the Advocate/Applicant’s Bill of Costs dated 24th March 2025. He reiterated that the Deputy Registrar had taxed the Bill of Costs at Kshs. 182,480/= and annexed copies of the ruling delivered on 13th November 2025, together with the Certificate of Taxation issued on 27th November 2025. 30. Mr. Michuki further deponed that there was no dispute as to the existence, validity, or enforceability of the taxed amount. He averred that pursuant to Rule 7 of the Advocates Remuneration Order, the Advocate/Applicant was entitled to interest on the taxed costs at the rate of 14% per annum from 26th April 2025, being one month after service of the Bill of Costs upon the Client/Respondent. In support of that assertion, he annexed an affidavit of service evidencing that the Bill of Costs had been served through email dated 25th March 2025. He further stated that despite service and taxation, the Client/Respondent had failed, neglected, and refused to settle the taxed costs or any part thereof, conduct which he described as non-compliance with court orders. According to the deponent, unless the orders sought were granted, the continued refusal to pay would deny the Advocate/Applicant the fruits of the taxation process and undermine the efficacy of the court’s taxation proceedings. He therefore urged the court to allow the application as prayed. 31. **Replying Affidavit sworn on 12th February 2026** 32. The Client/Respondent, Solza Limited, opposed the Advocate/Applicant’s Notice of Motion dated 20th January 2026 through a Replying Affidavit sworn on 12th February 2026 by Michael Wanganga, the Country Manager of the Client/Respondent. He deponed that by virtue of his position, he was conversant with the facts and circumstances of the matter and was therefore competent to swear the affidavit on behalf of the Client/Respondent. 33. Mr. Wanganga stated that he had read and understood the Advocate/Applicant’s application dated 20th January 2026, which sought entry of judgment against the Client/Respondent in terms of the Certificate of Costs dated 27th November 2025. He averred that the application ought not to proceed before the determination of the Client/Respondent’s reference dated 2nd December 2025, challenging the taxation of the Advocate/Applicant’s Bill of Costs dated 24th March 2025. 34. The deponent explained that the pending reference specifically challenged the taxing officer’s findings on certain items in the Bill of Costs and contended that, should the court find merit in the reference, the Certificate of Costs dated 27th November 2025 would be affected or rendered untenable. He therefore maintained that it was in the interests of order, fairness, and justice that the Advocate/Applicant’s application for entry of judgment be held in abeyance pending the hearing and determination of the said reference. 35. Mr. Wanganga further deponed that similar directions ought to apply to related matters filed as Narok HCCC Miscellaneous Applications Nos. E012, E013, E014, E016, E017, E018, E019, E020, E021, and E022 of 2025. He concluded by affirming that the matters deponed to in the affidavit were true to the best of his knowledge, information, and belief. 36. **Directions of the court** 37. Both applications were canvassed by way of written submissions. 38. **SUBMISSIONS** 39. **The Advocate/Applicant’s submissions.** 40. The Advocate/Applicant filed written submissions in support of the Notice of Motion dated 20th January 2026 and in opposition to the Client/Respondent’s reference dated 5th December 2025. The Advocate/Applicant submitted that the application was brought under Section 51(2) of the Advocates Act and Rule 7 of the Advocates Remuneration Order, seeking entry of judgment in the sum of Kshs. 182,480/= as certified in the Certificate of Taxation issued on 27th November 2025, together with interest at the rate of 14% per annum from 26th April 2025 until payment in full. 41. Counsel submitted that the Advocate/Applicant had acted for the Client/Respondent in Narok Chief Magistrate’s Court Civil Case No. E098 of 2023 involving a motor vehicle valued at Kshs. 1,250,000/=. It was submitted that the Advocate/Applicant entered appearance and filed an application seeking to strike out the Client/Respondent from the proceedings. Following taxation of the Advocate/Applicant’s Bill of Costs dated 24th March 2025, the taxing officer delivered a ruling on 13th November 2025, assessing the bill at Kshs. 182,480/= and subsequently issued a Certificate of Taxation on 27th November 2025. Counsel contended that despite the taxation, the Client/Respondent failed to settle the taxed costs, thereby necessitating the present application for entry of judgment. 42. On whether the court ought to interfere with the discretion of the taxing officer, the Advocate/Applicant submitted that the value of the subject matter for purposes of taxation is ascertainable from the pleadings, judgment, or settlement. Where not ascertainable, the taxing officer is entitled to exercise discretion in assessing instruction fees. It was argued that the Client/Respondent was properly joined in the subordinate court proceedings as the 2nd Defendant and remained bound by the pleadings and proceedings notwithstanding its subsequent striking out from the suit. Counsel further submitted that the Client/Respondent’s argument that the instruction fees ought to have been based only on the pleaded special damages of Kshs. 35,050/= was legally untenable because the subject motor vehicle had been valued at Kshs. 1,025,000/= and the judgment in the lower court had ultimately been entered at Kshs. 744,850/=. The court's discretion in such assessments is supported by established legal principles, ensuring fairness and consistency in taxation decisions. 43. The Advocate/Applicant maintained that the taxing officer properly exercised her discretion by pegging instruction fees on the judgment amount and awarding instruction fees at Kshs. 90,000/=. It was submitted that the striking out of the Client/Respondent from the proceedings did not extinguish the Advocate/Applicant’s entitlement to costs lawfully incurred prior thereto. 44. In support of the principles governing interference with taxation, counsel relied on **Kipkorir, Tito & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR,** where the Court of Appeal held that a judge should not interfere with the exercise of discretion by a taxing officer unless it is shown that the taxing officer erred in principle in assessing costs. Reliance was also placed on **Kamunyori & Company Advocates v Development Bank of Kenya Limited Civil Appeal No. 206 of 2006 [2015],** where the court held that instruction fees are calculated on the basis of the value of the subject matter as discerned from the pleadings, judgment, or settlement, and that an advocate is entitled to fees for work done once properly instructed. 45. The Advocate/Applicant further cited **First American Bank of Kenya v Shah & Others [2002] 1 EA 64,** where it was held that a court should not interfere with taxation merely because it considers the amount high unless the taxation was based on an error of principle or the amount awarded was manifestly excessive. Counsel also relied on **Joreth Ltd v Kigano & Associates [2002] eKLR**, where the Court of Appeal emphasized that a taxing officer exercises judicial discretion in taxation and that such discretion can only be interfered with where it is exercised capriciously, on wrong principles, or where the award is so excessive as to amount to an error in principle. 46. Counsel submitted that the Client/Respondent had failed to demonstrate that the taxing officer took into account irrelevant considerations or omitted relevant ones. It was contended that the taxing officer properly considered the pleadings, judgment, nature of the proceedings, and applicable principles under the Advocates Remuneration Order. The Advocate/Applicant therefore argued that there was no lawful basis for the court to interfere with the taxation. 47. On the issue of Value Added Tax (VAT), the Advocate/Applicant submitted that VAT is lawfully chargeable on legal services rendered by advocates. Reliance was placed on **J.P. Machira t/a Machira & Co. Advocates v MDC Holdings Ltd & 2 Others,** where Ringera J. held that VAT is a statutory requirement on legal services. Counsel further relied on **Aoro v Were [2022] KEHC 14628 (KLR),** where the court held that VAT is chargeable on instruction fees and disbursements and that objections to its inclusion are misplaced. It was therefore submitted that the taxing officer properly applied VAT on the instruction fees in accordance with statutory requirements and established precedent. 48. On the prayer for interest, counsel relied on Rule 7 of the Advocates Remuneration Order, which permits an advocate to charge interest at 14% per annum on disbursements and costs from the expiration of one month after delivery of the bill, provided the claim for interest is raised before full payment. Counsel submitted that the bill of costs had been delivered to the Client/Respondent on 25th March 2025 and that no payment had been made within the stipulated period. It was therefore argued that all statutory conditions for the award of interest had been satisfied. 49. In conclusion, the Advocate/Applicant urged the court to find that the taxation was proper, lawful, and consistent with the Advocate's Remuneration Order and applicable authorities. The court was accordingly urged to dismiss the Client/Respondent’s reference and allow the Notice of Motion dated 20th January 2026 with costs. 50. **The Client/Respondent’s submissions** 51. The Client/Respondent, Solza Limited, filed written submissions in support of its references dated 2nd and 5th December 2025, seeking to set aside the taxing officer’s ruling delivered on 13th November 2025, remit the Advocate/Applicant’s Bill of Costs dated 24th March 2025 for re-taxation, or, in the alternative, for the court to re-tax item 1 of the bill afresh. Counsel informed the court that the various miscellaneous applications had been consolidated with HCCC Misc. No. E012 of 2025 was designated as the lead file, and the submissions applied to all the consolidated matters with necessary modifications. 52. The Client/Respondent submitted that the taxing officer erred in principle by failing to consider the subordinate court record in Narok MCCC No properly. E098 of 2023, namely **Francis Gachanja Kairu & David Njoroge (Legal Representatives of the Estate of Joseph Gachanja – Deceased) v Brian Kairu Ng’ang’a & Solza Limited.** Counsel argued that the only work undertaken by the Advocate/Applicant was entering an appearance, filing an application dated 29th September 2023 seeking to strike out Solza Limited from the proceedings, and attending court on two occasions before the application was allowed on 31st January 2024. It was emphasised that the Advocate/Applicant never filed a defence, witness statements, or documents, and therefore did not defend the suit on behalf of the Client/Respondent. 53. Counsel submitted that the Advocate/Applicant’s instructions were limited to prosecuting the striking out application and not defending the substantive suit. In support of that contention, reliance was placed on **Ochieng Onyango, Kibet & Ohaga Advocates v Akiba Bank Limited [2008] 1 EA 380**, where the court held that where there is no documentary evidence of a retainer. There is a contradiction between the advocate and the client regarding instructions, greater weight should ordinarily be given to the client’s position and the burden of proving the retainer rests upon the advocate. The Client/Respondent argued that the Advocate/Applicant had not produced any letter of instructions demonstrating that it had been retained to defend the main suit and that the advocate’s own admissions confirmed the limited scope of the retainer. 54. The Client/Respondent further submitted that the taxing officer erred by relying on the judgment sum in the subordinate court in assessing instruction fees even though Solza Limited had already been struck out from the proceedings before the hearing and determination of the suit. Counsel argued that the Client/Respondent could not lawfully be bound by a judgment rendered after it had ceased being a party to the proceedings. It was submitted that, as at the time Solza Limited was struck out, the only ascertainable value from the pleadings was the pleaded special damages of Kshs. 35,050/= and that this was the proper subject value for purposes of taxation. 55. The Client/Respondent challenged the Advocate/Applicant’s reliance on the insurance valuation report valuing the motor vehicle at Kshs. 1,025,000/=, arguing that the valuation report did not form part of the pleadings and there was no evidence that it had been formally produced during the trial. Counsel maintained that a valuation report could not constitute pleadings for purposes of determining the value of the subject matter. Reliance was placed on **Moronge & Company Advocates v Kenya Airports Authority, Civil Appeal No. 262 of 2012 [2014] eKLR,** which was approved by the Supreme Court in **Kenya Airports Authority v Otieno Ragot & Company Advocates, SC Petition No. E011 of 2023**. The Supreme Court affirmed that where the value of the subject matter cannot be determined from the pleadings, judgment, or settlement, the taxing officer must exercise discretion in assessing instruction fees while taking into account all relevant circumstances. 56. Counsel argued that because the Client/Respondent had already been struck out before judgment was delivered, the taxing officer committed an error in principle by pegging instruction fees on the judgment sum of Kshs. 855,050/= instead of the only pleaded value available at the material time, namely Kshs. 35,050/=. It was contended that the taxing officer thereby improperly bound the Client/Respondent to a judgment in proceedings to which it was no longer a party, contrary to the principle of audi alteram partem. 57. On the principles governing interference with taxation, the Client/Respondent acknowledged the authority relied upon by the Advocate/Applicant in **Kipkorir, Tito & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR,** where the Court of Appeal held that a court may interfere with taxation where the taxing officer committed an error of principle. The Client/Respondent further relied on **Mark Ndumia Ndungu & Another v Nairobi Bottlers Limited, SC Petition Application No. E024 of 2023 and Applications Nos. E030, E034 & E038 of 2023,** where the Supreme Court restated the principles for setting aside a taxation decision, including where the taxing officer commits an error of principle, where the award is manifestly excessive or unjust, and where the award is inconsistent with comparable awards. 58. The Client/Respondent submitted that the taxing officer committed two principal errors: first, by relying on a judgment sum obtained after the Client/Respondent had been struck out from the proceedings, and second, by awarding instruction fees as though the Advocate/Applicant had defended the main suit instead of merely prosecuting an interlocutory application. Counsel argued that these errors rendered the taxation unjust and warranted interference by the court through re-taxation. 59. On the issue of VAT, the Client/Respondent submitted that the taxing officer erred in awarding VAT at the rate of 16%. Reliance was placed on **Pyramid Motors Limited v Lang’ata Gardens Limited [2015] eKLR,** where Onguto J. held that VAT is not ordinarily chargeable in party and party bills of costs unless evidence is adduced showing that VAT had actually been paid and that an indemnity was sought. Counsel argued that no evidence had been produced demonstrating that the Advocate/Applicant was a VAT-registered person or that VAT had been paid to justify indemnification. It was therefore submitted that the award of VAT ought to be vacated. 60. In conclusion, the Client/Respondent submitted that the taxation ruling resulted in unjust enrichment in favour of the Advocate/Applicant while occasioning prejudice to the Client/Respondent. The court was therefore urged to set aside the taxation ruling delivered on 13th November 2025 and remit the bill of costs for fresh taxation before the taxing officer, or re-tax item 1 afresh. 61. **Issues for Determination** 62. Having considered the pleadings, affidavits, annexures, and rival submissions by counsel, the following issues arise for determination: - 63. **Whether the taxing officer erred in principle in the taxation of the Advocate/Applicant’s Bill of Costs dated 24th March 2025.** 64. **Whether the instruction fees awarded by the taxing officer were excessive, unjustified, or founded on an erroneous appreciation of the scope of the Advocate/Applicant’s retainer and the value of the subject matter.** 65. **Whether Value Added Tax (VAT) was properly chargeable on the taxed instruction fees.** 66. **Whether the Client/Respondent has satisfied the legal threshold for interference with the taxation ruling delivered on 13th November 2025.** 67. **Whether the Advocate/Applicant is entitled to entry of judgment under Section 51(2) of the Advocates Act together with interest under Rule 7 of the Advocates Remuneration Order.** 68. **ANALYSIS AND DETERMINATION** 69. The court has carefully considered the Chamber Summons dated 2nd December 2025, the Notice of Motion dated 20th January 2026, the affidavits filed by the respective parties, and the rival submissions together with the authorities cited. 70. The law relating to references from decisions of taxing officers is now settled. A judge will not lightly interfere with the discretion of a taxing officer unless it is demonstrated that the taxing officer acted on a wrong principle of law, considered irrelevant matters, failed to consider relevant factors, or that the award made is so manifestly excessive or low as to amount to an injustice. In ***Kipkorir, Tito & Kiara Advocates v Deposit Protection Fund Board* [2005] eKLR,** the Court of Appeal held that: - *“On 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.”* 1. Similarly, in ***First American Bank of Kenya v Shah & Others* [2002] 1 EA 64,** the court held that a judge ought not interfere merely because he would have awarded a different figure, unless the award is shown to have been based on an error of principle or is manifestly excessive. The same principle was reiterated in ***Joreth Ltd v Kigano & Associates* [2002] eKLR**, where the Court of Appeal emphasized that taxation is an exercise of judicial discretion which should only be disturbed where exercised capriciously or upon wrong principles. 2. The gravamen of the Client/Respondent’s complaint is that the taxing officer improperly treated the Advocate/Applicant as though it had defended the entire subordinate court suit whereas its retainer was allegedly limited to filing and prosecuting an application seeking the striking out of Solza Limited from the proceedings. The Client/Respondent further contends that the taxing officer erroneously relied on the judgment sum in the subordinate court despite the fact that Solza Limited had already been struck out before judgment was delivered. 3. The court has perused the record placed before it. It is not disputed that the Advocate/Applicant entered appearance on behalf of the Client/Respondent and filed an application dated 29th September 2023 seeking to strike out Solza Limited from Narok MCCC No. E098 of 2023. It is equally not disputed that the said application was allowed on 31st January 2024 and that no defence, witness statements, or documentary evidence were thereafter filed on behalf of the Client/Respondent. 4. The court agrees with the Client/Respondent that the nature and scope of an advocate’s instructions are relevant considerations in assessing instruction fees in an advocate-client bill of costs. In ***Ochieng Onyango, Kibet & Ohaga Advocates v Akiba Bank Limited* [2008] 1 EA 380**, the court observed that where the extent of a retainer is disputed, the burden lies upon the advocate to establish the nature of instructions received. In the present matter, there is no evidence demonstrating that the Advocate/Applicant had instructions to defend the substantive suit beyond the prosecution of the striking out application. Indeed, the conduct of the proceedings demonstrates that once the application dated 29th September 2023 succeeded, the Advocate/Applicant ceased participation in the matter. 5. The next question concerns the proper value of the subject matter for purposes of taxation. The Advocate/Applicant urged the court that the taxing officer properly relied on the judgment amount and the insurance valuation report valuing the motor vehicle at over Kshs. 1,000,000/=. Conversely, the Client/Respondent contended that the only ascertainable value from the pleadings at the time it exited the proceedings was the pleaded special damages of Kshs. 35,050/=. 6. The applicable principle was succinctly stated in ***Joreth Ltd v Kigano & Associates* [2002] eKLR**, where 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. Where the value is not ascertainable therefrom, the taxing officer is entitled to exercise discretion taking into account the nature and importance of the matter, the interests of the parties, and all relevant circumstances. The same position was reaffirmed in ***Moronge & Company Advocates v Kenya Airports Authority* Civil Appeal No. 262 of 2012 [2014] eKLR** and later approved by the Supreme Court in ***Kenya Airports Authority v Otieno Ragot & Company Advocates*, SC Petition No. E011 of 2023.** 7. In the present matter, the court finds merit in the Client/Respondent’s contention that the taxing officer fell into error by relying on the judgment sum in the subordinate court proceedings. By the time judgment was delivered, Solza Limited had already been struck out from the proceedings and was no longer a party to the suit. It would therefore be erroneous to peg instruction fees against the Client/Respondent on the basis of a judgment rendered in proceedings to which it was no longer a party. 8. Further, although the Advocate/Applicant relied on an insurance valuation report valuing the motor vehicle at Kshs. 1,025,000/=, such valuation did not constitute a pleading, judgment, or settlement within the meaning of the principles set out in ***Joreth Ltd v Kigano & Associates*** (supra). The taxing officer was therefore not entitled to treat the valuation report as the determinative subject value without considering the limited scope of the Advocate/Applicant’s retainer and the fact that the Client/Respondent had exited the proceedings before trial. 9. The court consequently finds that the taxing officer misdirected herself in principle by assessing instruction fees on the footing that the Advocate/Applicant had defended the substantive suit and by relying on the judgment amount rendered after the Client/Respondent had ceased being a party to the proceedings. That error materially affected the assessment of instruction fees and warrants interference by this court. 10. On the issue of VAT, the court notes that the bill before the taxing officer was an advocate-client bill of costs. The law is now settled that VAT is chargeable on legal services rendered by advocates. In ***J.P. Machira t/a Machira & Co. Advocates v MDC Holdings Ltd & 2 Others*,** Ringera J. observed that VAT on legal services is a statutory requirement. Likewise, in ***Aoro v Were* [2022] KEHC 14628 (KLR),** the court held that VAT is chargeable on both instruction fees and disbursements in advocate-client bills of costs. 11. The authority of ***Pyramid Motors Limited v Lang’ata Gardens Limited* [2015] eKLR,** relied upon by the Client/Respondent concerned party-and-party costs and is therefore distinguishable from the present advocate-client taxation. The court therefore finds no error in principle in the taxing officer’s inclusion of VAT on the instruction fees. 12. Turning to the Advocate/Applicant’s Notice of Motion dated 20th January 2026 seeking entry of judgment under Section 51(2) of the Advocates Act, the court notes that a certificate of taxation is ordinarily final as to the amount of costs unless it is set aside or altered by the court. However, once a competent reference challenging the taxation has been filed and the court finds merit in that reference, entry of judgment cannot issue on the basis of a taxation that has been successfully impugned. 13. Having found that the taxing officer committed an error in principle in assessing instruction fees, the Certificate of Taxation dated 27th November 2025 cannot stand in its current form. Consequently, the Advocate/Applicant’s application for entry of judgment and interest under Rule 7 of the Advocates Remuneration Order is premature and cannot succeed at this stage. 14. The remaining question is whether this court should itself re-tax item 1 of the bill or remit the bill back for re-taxation. The general principle is that where the error relates to the exercise of discretion by the taxing officer and fresh consideration of relevant factors is necessary, the appropriate course is to remit the bill for re-taxation before a different taxing officer. This approach was endorsed in ***First American Bank of Kenya v Shah & Others* [2002] 1 EA 64.** 15. In the circumstances of this matter, the court is satisfied that the interests of justice would best be served by remitting the Advocate/Applicant’s Bill of Costs dated 24th March 2025 for re-taxation before a different taxing officer, who shall take into account the limited scope of the Advocate/Applicant’s retainer, the stage at which the Client/Respondent exited the proceedings, and all other relevant considerations under the Advocates Remuneration Order. 16. Consequently, the court makes the following orders: - 17. **The Client/Respondent’s Chamber Summons dated 2nd December 2025 is hereby allowed.** 18. **The taxation ruling delivered on 13th November 2025 together with the resultant Certificate of Taxation dated 27th November 2025 are hereby set aside.** 19. **The Advocate/Applicant’s Bill of Costs dated 24th March 2025 shall be remitted for re-taxation before a different taxing officer other than the one who conducted the impugned taxation.** 20. **The Advocate/Applicant’s Notice of Motion dated 20th January 2026 seeking entry of judgment is hereby dismissed.** 21. **Each party shall bear its own costs of the reference and the Notice of Motion.** 22. It is so ordered. **DATED, SIGNED, AND DELIVERED AT NAROK, THIS** **21ST DAY OF MAY, 2026.** ………………………………………. **CHARLES KARIUKI** **JUDGE**