Gatheru Gathemia Co Advocates v Ngatunyi & another (As co-administrators and beneficiaries of the Estate of Simon Ngatunyi Chabi) (Miscellaneous Application E020 of 2020) [2026] KEHC 5922 (KLR) (Family) (30 April 2026) (Ruling)

Ruling Milimani Family Misc. Application No. E020 of 2020 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MILIMANI FAMILY DIVISION MISCELLANEOUS APPLICATION NO. E020 OF 2020 IN THE MATTER OF THE ADVOCATES ACT, CAP 16 AND IN THE MATTER OF TAXATION BETWEEN ADVOCATE AND CLIENT BETWEEN GATHERU GATHEMIA & CO. ADVOCATES ...................ADVOCATE/APPLICANT VERSUS LILIAN MUTHONI NGATUNYI & FELIX MUTHAURA NGATUNYI (as Co-Administrators and Beneficiaries of The Estate of SIMON NGATUNYI CHABI) ........CLIENT/RESPONDENT RULING 1. The matter presently before this Court encompasses two consolidated references arising from the taxation of an Advocate-Client Bill of Costs. The references challenge the Ruling and the ensuing Certificate of Taxation delivered on 13 May 2024 and 27 May 2024, respectively, by the Taxing Master, Honourable G.N. Sitati, Deputy Registrar, Family Division. The taxation dispute originates from the protracted and highly contentious High Page 1 of 22 Ruling Milimani Family Misc. Application No. E020 of 2020 Court Succession Cause No. 1239 of 2010, which concerns the sprawling Estate of the Late Simon Ngatunyi Chabi. 2. The Advocate, Gatheru Gathemia & Co. Advocates, formally filed an Advocate-Client Bill of Costs dated 18 August 2020, seeking an aggregate sum of Kshs. 154,889,061/=. This quantum was claimed in consideration of professional legal services rendered over a period of approximately 8 years to Lilian Muthoni Ngatunyi and Felix Muthura Ngatunyi, who are prominent beneficiaries and subsequent co-Administrators of the Deceased's estate. Upon conducting the taxation proceedings, the Deputy Registrar taxed off a substantial portion of the claimed bill, ultimately assessing and certifying the costs payable to the Advocate at Kshs. 28,864,899/=. 3. Aggrieved by this assessment, both the Advocate and the Clients have invoked the appellate jurisdiction of the High Court under Paragraph 11 of the Advocates (Remuneration) Order, read in conjunction with the enabling provisions of the Advocates Act. The consolidation of these references demands a holistic adjudication of the divergent grievances presented. 4. The Advocate's Reference, instituted via a Chamber Summons dated 24 May 2024, advances the argument that the Taxing Master, while correctly ascertaining the baseline principles of law and computing the base instruction fee, committed a manifest procedural and mathematical error. The Advocate contends that the Taxing Master failed to mandatorily increase the awarded instruction fees by one-half (50%), a multiplier expressly prescribed under Schedule 10, Part B of the Advocates Remuneration Order for Advocate- Client costs. Consequently, the Advocate seeks the substitution of the Kshs. 28,864,899/= award with an augmented sum of Kshs. 43,297,348.50. 5. Conversely, the Clients' Reference, instituted via a Chamber Summons dated 4 June 2025, mounts a comprehensive attack on the entirety of the Taxing Page 2 of 22 Ruling Milimani Family Misc. Application No. E020 of 2020 Master's Ruling. The Clients seek to have the ruling set aside and the Bill of Costs either struck out in limine or remitted for fresh taxation before a differently constituted tribunal. The Clients assert that the Taxing Master lacked substantive jurisdiction ab initio due to the alleged existence of a Retainer Agreement governed by section 45 of the Advocates Act. Furthermore, the Clients contend that the Taxing Master erred fundamentally in relying upon a flawed and highly contested Valuation Report to ascertain the value of the subject matter, particularly in the absence of a confirmed grant of representation. Ultimately, the Clients aver that the fee awarded is manifestly excessive, oppressive, and contrary to the prevailing tenets of public policy and access to justice. Background 6. High Court Succession Cause No. 1239 of 2010 involves the vast and highly valuable estate of the late Simon Ngatunyi Chabi, a prominent businessman whose accumulated assets include expansive tracts of prime real estate in Nairobi, Karatina, and Nyahururu, alongside numerous commercial properties, industrial plots, and an assortment of motor vehicles. 7. The succession process following his demise was notably acrimonious, characterized by deep-seated familial fractures and competing claims of entitlement. The Deceased had remarried following the death of his first wife and had allegedly fathered children out of wedlock, resulting in the emergence of three distinct households, each aggressively vying for control, administration, and the ultimate distribution of the estate. This adversarial environment predictably spawned a multiplicity of legal suits and necessitated the involvement of several prominent law firms, each representing the divergent and often hostile interests of the various factions. 8. The Advocate was formally retained by Lilian Muthoni Ngatunyi on 21 May 2013. The initial documentary evidence of this engagement, an Instruction Page 3 of 22 Ruling Milimani Family Misc. Application No. E020 of 2020 Note, stipulated that the client would provide an interim cost deposit of Kshs. 125,000/=, accompanied by a monthly retainer of USD $400, with an ultimate fee computed at 1.5% of the client's eventual portion of the estate. Subsequently, in September 2013, the Advocate received parallel instructions from Brian Kang'ethe Ngatunyi, and later from Felix Muthura Ngatunyi, effectively consolidating the representation of one specific household's interests. 9. The Advocate's tenure on record was characterized by extensive, complex, and high-stakes litigation aimed primarily at preserving the estate's substratum from imminent dissipation and illegal alienation by rival factions. The evidentiary record demonstrates that the Advocate successfully petitioned the probate court to have the Clients formally appointed as Co- Administrators. Crucially, the Advocate secured comprehensive injunctive orders on 25 September 2013, effectively halting the illegal sale and transfer of prime estate properties by rival administrators who had allegedly intermeddled with the assets using a limited grant. 10. Furthermore, the Advocate navigated extraordinary procedural and administrative hurdles throughout the litigation lifecycle. This included initiating proceedings for the reconstruction of a lost court file, securing specific court orders for DNA testing to conclusively verify the paternity of disputed beneficiaries, and obtaining court-sanctioned releases of estate funds to ensure the uninterrupted international education of the Deceased's dependents. 11. A critical and highly consequential milestone in the litigation occurred on 14 March 2018, when the High Court formally ordered a comprehensive valuation of all known assets of the estate. Advent Valuers Ltd, an independent professional valuation firm, conducted this assessment and submitted a detailed report valuing the estate's gross capital at an aggregate Page 4 of 22 Ruling Milimani Family Misc. Application No. E020 of 2020 sum of Kshs. 3,334,270,000/=. This valuation report was formally tabled, admitted into evidence, and adopted by the probate court. At the time of its adoption, no formal objections were registered by the beneficiaries or their respective legal representatives regarding the methodology or the final quantum presented by the valuer. 12. Over time, however, the Advocate-client relationship deteriorated, allegedly due to internal disputes among the siblings and disagreements over the remittance of legal fees. This breakdown culminated in the Advocate's withdrawal from the matter and the subsequent filing of the Advocate-Client Bill of Costs on 18 August 2020. The ensuing taxation proceedings before the Deputy Registrar, which spanned several years and included preliminary objections regarding jurisdiction, finally culminated in the ruling of 13 May 2024. 13. The Deputy Registrar's evaluation of the Bill of Costs involved a robust, item- by-item reduction of the exorbitant amounts originally claimed by the Advocate. 14. The Taxing Master commenced her analysis by correctly establishing her jurisdiction to tax the bill, affirming that while a retainer relationship indisputably existed between the parties, there was no valid, written retainer agreement capable of ousting the taxation process under section 45 of the Advocates Act. 15. In determining the core issue of instruction fees, the Taxing Master acknowledged that the underlying succession cause was filed in 2010, and the Advocate received instructions in 2013. Consequently, the Taxing Master determined that the 2009 Advocates Remuneration Order (ARO) was the applicable statutory instrument for calculating the base instruction fees, while Page 5 of 22 Ruling Milimani Family Misc. Application No. E020 of 2020 subsequent services rendered after 2014 would be governed by the 2014 Amendment Order. 16. The Taxing Master recognized that the value of the subject matter could not be ascertained from the primary pleadings alone, as the Petition for Letters of Administration contained a mere estimation. Exercising her judicial discretion, the Taxing Master elected to rely on the formal Valuation Report prepared by Advent Valuers Limited, which had been adopted by the probate court, pegging the gross capital value of the estate at Kshs. 3,334,270,000/=. 17. Utilizing Schedule 10 of the 2009 ARO, the Taxing Master computed the base instruction fee as follows: (i) 1.5% of the first Kshs. 1,000,000.00 (which the Taxing Master arithmetically noted as Kshs. 15,000.00). (ii) 0.75% (or the applicable scale fraction) of the remaining Kshs. 3,333,270,000.00, yielding Kshs. 24,999,525/=. (iii) The aggregation of these figures resulted in a base instruction fee of Kshs. 25,014,525/=. 18. Following this, the Taxing Master systematically reviewed the remaining items. She taxed off the Getting Up Fees in their entirety, correctly noting that Schedule 10 of the ARO does not provide for such fees in probate matters. She made minor downward adjustments to drawings, copies, perusals, and correspondences to align them with the strict statutory folios, and drastically reduced the fees claimed for attendances and service, striking out items that were not strictly provided for under the applicable Schedule. Page 6 of 22 Ruling Milimani Family Misc. Application No. E020 of 2020 19. Notably absent from the Taxing Master's final computation was the application of the 50% multiplier mandated by Schedule 10, Part B for Advocate-Client costs. The base instruction fee of Kshs. 25,014,525/= was adopted as the final instruction fee without the statutory uplift. This specific omission forms the absolute crux of the Advocate's Reference. The Clients' Submissions 20. The Clients/Respondents mount a robust defence against the taxation, primarily attacking the jurisdiction of the Taxing Master and the foundational metrics used to compute the fees. 21. Firstly, the Clients argue that the Taxing Master was statutorily barred from entertaining the Bill of Costs by virtue of section 45(6) of the Advocates Act. They posit that the Instruction Note signed on 21 May 2013 constituted a valid, binding retainer agreement fixing the Advocate's remuneration at 1.5% of the client's ultimate portion of the estate. Relying on the precedent in Corporate Insurance Company Limited v. Kang'ethe and Mola Advocates eKLR, they assert that where such an agreement exists, the jurisdiction of the taxing officer is ousted entirely, and the bill ought to have been struck out in limine. 22. Secondly, the Clients challenge the Taxing Master's reliance on the Advent Valuers Ltd report. They argue that Schedule 10(1)(a) of the ARO explicitly mandates that fees be calculated based on the gross capital value of property comprised in the Grant. Because the succession cause remains pending and no final Certificate of Confirmation of Grant has been issued, the Clients contend there is legally no property comprised in the Grant, rendering the taxation premature and mathematically baseless. Furthermore, they attack the evidentiary integrity of the valuation report itself, alleging that the valuer failed to physically inspect 24 of the 30 listed properties, and that Page 7 of 22 Ruling Milimani Family Misc. Application No. E020 of 2020 certain properties included in the valuation are the subject of active ownership disputes before the Environment and Land Court. 23. Lastly, the Clients invoke the equitable jurisdiction of the Court, arguing that an award of nearly Kshs. 29 million is manifestly excessive, punitive, and contrary to the public policy objective of ensuring affordable access to justice. They argue that the complexity of the matter was exaggerated and that any costs ultimately deemed payable should be borne directly by the Estate of the Deceased, rather than by the individual administrators. The Advocate's Submissions 24. The Advocate/Applicant defends the jurisdiction of the Taxing Master while simultaneously attacking her mathematical finality. 25. Addressing the jurisdictional challenge, the Advocate draws a sharp legal distinction between a mere retainer relationship, the act of hiring a lawyer, and a formal retainer agreement, a statutory contract fixing fees under Section 45. Citing Omulele & Tollo Advocates v. Mount Holdings Limited KECA 523 (KLR), the Advocate argues that while a relationship existed, no valid, legally compliant agreement fixing a cap on instruction fees was ever finalized or signed by all necessary parties. Therefore, taxation was the only lawful avenue for cost recovery. 26. The Advocate's primary grievance, however, is encapsulated in the Reference dated 24 May 2024. The Advocate argues that the Taxing Master, having correctly determined the base party-and-party instruction fee at Kshs. 25,014,525/-, committed an egregious error of principle by failing to apply Schedule 10, Part B of the ARO. This Schedule mandatorily dictates that for Advocate-Client costs, the fees prescribed in Part A must be increased by one-half (50%). Relying on historical precedents such as D. Njogu & Company Advocates v. Panafcon Engineering Limited eKLR and Kenya Page 8 of 22 Ruling Milimani Family Misc. Application No. E020 of 2020 Tea Development Agency Limited v. J.M. Njenga & Co. Advocates eKLR, the Advocate asserts that this uplift is automatic, non-discretionary, and mathematically inescapable. Consequently, the Advocate prays that the Court correct this arithmetic anomaly and substitute the award with Kshs. 43,297,348.50. Analysis & Determination 27. The parameters within which this Court exercises its appellate, supervisory jurisdiction over the decisions of a Taxing Master are well-entrenched, rigid, and strictly circumscribed. A reference under Paragraph 11 of the Advocates Remuneration Order is not an open invitation for the Court to substitute their own subjective assessment of costs for that of the Taxing Officer. The Taxing Officer is recognized as an experienced, specialized tribunal uniquely equipped to evaluate the minutiae of legal billing. 28. The foundational authority governing this jurisdiction is the Court of Appeal's seminal holding in First American Bank of Kenya v. Shah and Others 1 EA 64, which distilled the criteria for judicial interference into distinct, conjunctive pillars. The Court cannot and will not interfere with the Taxing Officer's decision on taxation unless it is conclusively demonstrated that the decision was based on an explicit error of principle. The Court will interfere if the quantum of the fee awarded is so manifestly excessive or manifestly inadequate as to justify an irrefutable inference that it was based on an underlying error of principle. An error of principle crystallizes when the Taxing Officer takes into account irrelevant factors, or inversely, omits to consider relevant factors mandatory under the Remuneration Order, such as the nature and importance of the matter, the amount or value of the subject matter, the interest of the parties, and the general conduct and duration of the proceedings. Page 9 of 22 Ruling Milimani Family Misc. Application No. E020 of 2020 29. Furthermore, as eloquently enunciated in Premchand Raichand Ltd. v. Quarry Services of East Africa Ltd. EA 162, the taxation of costs must relentlessly balance competing public policy interests. Costs must be sufficient and respectable enough to attract highly competent recruits to the legal profession and to fairly reimburse an advocate for immense intellectual labour and assumed professional risk. Conversely, costs must not be allowed to rise to a prohibitive level that effectively renders the courts inaccessible to the general citizenry, thereby defeating the constitutional guarantee of access to justice. 30. This Court identifies four core issues for determination: (i) Whether the Taxing Master lacked jurisdiction due to the existence of a valid remuneration agreement under section 45(6) of the Advocates Act. (ii) Whether the Taxing Master erred in principle by relying on a Valuation Report to ascertain the value of the estate in the absence of a confirmed grant. (iii) Whether the Taxing Master committed an error of principle by failing to automatically increase the assessed instruction fees by 50% under Schedule 10, Part B. (iv) Whether the costs awarded are manifestly excessive, and whether liability rests with the individual Clients or the Estate. Jurisdiction, Retainer Agreements, and the Boundaries of Section 45 31. The Clients' primary defensive strategy is to attack the very jurisdiction of the Taxing Master. They assert that the Instruction Note signed on 21 May 2013, which proposed an ultimate fee at 1.5% of the portion of client's estate, Page 10 of 22 Ruling Milimani Family Misc. Application No. E020 of 2020 constitutes a binding remuneration agreement. Section 45(6) of the Advocates Act expressly states that where an agreement has been made by virtue of this section, the costs of an advocate shall not be subject to taxation. 32. Firstly, as a matter of strict appellate procedure, a Reference under Paragraph 11 of the ARO restricts the High Court to evaluating the correctness of the Taxing Master's decision based solely on the factual and evidentiary record that was formally presented during the original taxation proceedings. The introduction of new legal grounds or fresh documentary ambushes is procedurally impermissible. 33. The record clearly reveals that during the taxation proceedings before the Deputy Registrar, the Clients opposed the Bill of Costs generally on the grounds that it was excessive and that the valuation report was flawed. While the Instruction Note may have been buried within the voluminous annexures of the parent file, the Clients did not formally plead or argue the existence of a section 45 agreement as a specific jurisdictional bar before the Taxing Master. As the Court authoritatively held in M Mochama & Co. Advocates v. Daniel Kamau Kiongera KEHC 10722 [2024] (KLR), " In determining a reference from the decision of a Taxing Master, this court exercises an appellate jurisdiction. It cannot determine an issue that was not before the Taxing Master and is raised for the first time in a reference.” 34. Similarly, in Showcase Property Limited v. Mugambi & Company Advocates [2020] eKLR, the Court explicitly ruled that if the specific issue of a retainer or a remuneration agreement is not framed as a point of contention before the Deputy Registrar, it is strictly barred from being weaponized on reference. The Clients' attempt to introduce the Instruction Note as a jurisdictional torpedo at this late, appellate stage is procedurally fatal. Page 11 of 22 Ruling Milimani Family Misc. Application No. E020 of 2020 35. Secondly, even if this Court were to generously overlook the procedural irregularity and entertain the Instruction Note, its substantive validity as a section 45 agreement is legally bankrupt. Section 45(1) of the Advocates Act permits Advocates and clients to negotiate written agreements fixing remuneration. However, this statutory freedom of contract is expressly, strictly, and unambiguously curtailed by section 46 of the Advocates Act. 36. Section 46 of the Act serves as the ethical firewall of the legal profession, designed to prevent champerty and maintenance. Section 46(c) explicitly invalidates any agreement by which an advocate retained in a contentious proceeding stipulates for payment only in the event of success in such suit or proceeding or that the Advocate shall be remunerated at different rates according to the success or failure thereof. Furthermore, section 46(a) invalidates any purchase by an Advocate of the interest, or any part of the interest, of his client in any suit or contentious proceeding. 37. An agreement stipulating that an Advocate shall receive 1.5% of the portion of the client's estate in a highly contentious, deeply fractured succession dispute fundamentally alters the Advocate's role from an independent officer of the court to a joint-venturer in the litigation. It ties the Advocate's remuneration directly to the substantive, physical recovery of property. As eloquently restated in A.H Malik & Co. Advocates v. Mavoloni Company Limited and further examined in Omulele & Tollo Advocates v. Mount Holdings Limited KECA 523 (KLR), such percentage-based contingency fees in contentious probate matters are void against public policy. They compromise the advocate's independence, incentivize the prolongation of conflict, and clearly contravene the prohibitions outlined in section 46. 38. Thirdly, the terms of the Instruction Note lack the requisite certainty and precision required to qualify as a comprehensive, enforceable retainer agreement. The phrase "ultimate fees at 1.5% of the portion of the client's Page 12 of 22 Ruling Milimani Family Misc. Application No. E020 of 2020 estate" is fluid, wholly conditional, and mathematically unascertainable without a final, confirmed, and executed grant of representation. It does not fix the amount of the Advocate's remuneration as strictly contemplated by section 45(1)(a). 39. Therefore, while a valid retainer relationship indisputably existed—evidenced by years of active legal representation, the filing of voluminous pleadings, and the partial remittance of interim payments—a valid, legally enforceable retainer agreement capable of ousting taxation under section 45(6) did not exist. The Taxing Master correctly and lawfully assumed jurisdiction over the Advocate-Client Bill of Costs. The Clients' jurisdictional objection is unequivocally dismissed. Assessing the Subject Matter 40. The Clients launch a severe attack on the Taxing Master's reliance on the Valuation Report prepared by Advent Valuers Ltd. The Clients argue that under Schedule 10(1)(a) of the Advocates Remuneration Order, instruction fees for probate matters are to be calculated based on the gross capital value of property comprised in the Grant. They advance a literalist argument: because the succession cause remains pending and no Certificate of Confirmation of Grant has been issued, there is legally no property comprised in the Grant. Consequently, they assert that the taxation was premature, and the application of Schedule 10(1)(a) was mathematically baseless. Furthermore, they attack the evidentiary integrity of the valuation report itself. 41. The argument that an Advocate must await the final confirmation of a Grant before taxing a Bill of Costs is jurisprudentially unsound and practically unworkable. When an Advocate's instructions are withdrawn or unilaterally terminated, the Advocate is immediately entitled to payment for the services rendered up to that point. In Machira & Co. Advocates v. Arthur K. Page 13 of 22 Ruling Milimani Family Misc. Application No. E020 of 2020 Magugu & Another KECA 245 (KLR), the Court of Appeal authoritatively held that an advocate whose instructions have been terminated is entitled to immediate payment and does not have to wait until the underlying matter is conclusively determined. Similarly, in Mumias Sugar Company Limited v. Tom Ojienda & Associates Advocates KEHC 9051 (KLR), the Court affirmed that an Advocate becomes entitled to instruction fees the moment instructions are accepted and pleadings are drawn, even if the matter is subsequently aborted or instructions are withdrawn midway. 42. Therefore, the Taxing Master was perfectly entitled, and indeed obligated, to tax the bill despite the absence of a confirmed grant. The operative, complex question then becomes: How does a Taxing Master ascertain the gross capital value of an estate for the purposes of Schedule 10 when the grant remains unconfirmed? 43. The guiding principle is found in the seminal Court of Appeal decision in Joreth Limited v. Kigano & Associates 1 EA 92, wherein the Court ruled that the value of the subject matter should generally be determined from the pleadings, judgment, or settlement. However, the Court crucially added that if the value is not readily ascertainable from these primary documents, the Taxing Officer is fully entitled to use their judicial discretion to assess the instruction fee, taking into account all relevant circumstances. 44. In succession disputes involving vast, multi-generational land holdings and commercial enterprises, initial pleadings such as the Petition for Letters of Administration rarely contain a definitive, accurate monetary value. In such instances, the Taxing Master's discretion is activated. Justice Sila Munyao (as he then was) in Masore Nyang'au & Co. Advocates v. Kensalt Limited KEELC 2712 [2019] (KLR) established a clear, pragmatic precedent: the court is not precluded from relying on external evidentiary documents—such as sale agreements, transfer instruments, or formal valuation reports—to Page 14 of 22 Ruling Milimani Family Misc. Application No. E020 of 2020 determine the value of the subject matter for the purposes of ascertaining what is payable as instruction fees. 45. Similarly, in cases such as Paul Smogerere & Olum vs. Attorney General (Civil Application No. 5 of 2001) and Swaleh Mwangi & Co. Advocates vs John Kaguma Maina (Misc Civil Suit No. 61 of 2017), the Court has consistently held that the taxing officer is empowered to look beyond the immediate pleadings and adopt reasonable, empirically backed valuations to prevent an Advocate from being unjustly deprived of fees commensurate with the massive responsibility undertaken. 46. The evidentiary record indicates that the Advent Valuers Ltd Valuation Report was not a unilateral, out-of-court procurement orchestrated in the shadows by the Advocate. It was formally commissioned pursuant to a specific, binding Court order issued by Hon. Justice Margaret Muigai on 14 March 2018. The report was formally produced in the probate court, scrutinized, and officially adopted as part of the primary record. At the exact time of the taxation proceedings, the valuation report stood unchallenged, un-appealed, and un- quashed in the primary succession cause. 47. The Clients argue in their Reference that Justice A.O. Muchelule issued a subsequent ruling on 15 February 2021 potentially excluding certain properties (L.R. No. 2327/72 and LR No. 2327/357) from the estate pending a distinct determination by the Environment and Land Court. However, the Advocate rightly points out that this 2021 ruling was never placed before the Taxing Master during the taxation proceedings. A Taxing Master cannot possibly be faulted for failing to consider a document that was actively withheld or not adduced in evidence. The Taxing Master made a rational, legally sound, and objective decision to rely on the only comprehensive, court-sanctioned metric of value available on the record: the 3.3 billion Shilling valuation report. Page 15 of 22 Ruling Milimani Family Misc. Application No. E020 of 2020 48. If the Clients genuinely believed the valuation was defective or included non- estate assets, the evidentiary burden shifted to them to produce an alternative, expert-led valuation report during the taxation proceedings to assist the Taxing Master. They failed entirely to do so. Therefore, the Taxing Master committed no error of principle whatsoever in utilizing the Kshs. 3,334,270,000/= figure to calculate the baseline instruction fees under Schedule 10(1)(a) of the 2009 Advocates Remuneration Order. The Clients' ground of objection on this issue is dismissed. The 50% Uplift under Schedule 10 Part B 49. The central, most contentious pillar of the Advocate's Reference is the argument that the Taxing Master committed a gross mathematical and procedural error by failing to apply the statutory uplift required for Advocate- Client bills. 50. The Advocate points out that the Taxing Master accurately assessed the base instruction fee at Kshs. 25,014,525.00. This figure was derived by applying the mathematical formula under Schedule 10, Part A (Party and Party Costs) of the 2009 Advocates Remuneration Order (1.5% of the first Kshs. 1,000,000.00, and the applicable scale percentage on the remainder). 51. However, the Advocate notes that Schedule 10 of the ARO is distinctly bifurcated. Part A provides the rigid scale for Party and Party costs. Part B provides the scale for Advocate and Client costs. Schedule 10, Part B explicitly and unambiguously states: As between advocate and client the minimum fee shall be: (a) the costs prescribed in A above, increased by 50%; (b) the costs ordered by the Tribunal, increased by 50%; or (c) the Page 16 of 22 Ruling Milimani Family Misc. Application No. E020 of 2020 costs agreed by the parties under paragraph 57 of this Order, increased by 50%... 52. The Advocate's argument relies heavily on historical, rigid precedents. In D. Njogu & Company Advocates v. Panafcon Engineering Limited [2006] eKLR, the Court strictly ruled that an Advocate-Client Bill can never be less than the Party and Party costs because the Remuneration Order expressly commands that the prescribed fees be increased by one-half. Similarly, in Kenya Tea Development Agency Limited v. J.M. Njenga & Co. Advocates [2008] eKLR, the Court reiterated that once the instruction fee is determined under Part A, the Taxing Master has a mandatory, inescapable obligation to augment it by the formula in Part B (increase by one-half). 53. The Taxing Master's Ruling of 13 May 2024 reveals a total omission of this 50% multiplier. After deriving the baseline figure of Kshs. 25,014,525/=, the Taxing Master concluded her assessment of the instruction fees and proceeded to calculate VAT, completely ignoring Part B. Under the traditional D. Njogu paradigm, this omission would constitute an automatic, indefensible error of principle requiring immediate rectification by this Court. 54. However, the jurisprudential landscape regarding the 50% uplift in Advocate- Client bills has recently undergone a seismic and fundamental paradigm shift. 55. This Court is bound by and guided by the landmark decision of the Supreme Court in Kenya Airports Authority v. Otieno Ragot and Company Advocates (Petition No. E011 of 2023). In that watershed case, an Advocate sought instruction fees amounting to hundreds of millions of shillings based on the underlying value of a compulsory land acquisition claim. The High Court initially taxed the costs down to Kshs. 5 million, exercising profound discretion to prevent the costs from becoming Page 17 of 22 Ruling Milimani Family Misc. Application No. E020 of 2020 oppressive. The Court of Appeal overturned the High Court, strictly applying the ARO scales and the 50% uplift, thereby enhancing the costs to Kshs. 196,044,750.50. 56. The Supreme Court definitively quashed the Court of Appeal's rigid, arithmetic approach. The apex Court authoritatively held that a proper interpretation of the mode of taxation of advocate fees—especially in matters involving astronomical subject values where the suit is determined without full protracted trial, or where strict adherence to percentages yields unconscionable results—is that the taxing officer must exercise overriding discretion in assessing the fees payable. 57. The Supreme Court unequivocally ruled that "the Taxing Officer's discretion in assessing Advocate-Client costs is not fettered to a mere arithmetic computation of increasing the instruction fees ascertained in the Party & Party costs by one-half.". The Court mandated that the 50% uplift is not a blind, automatic mathematical right that overrides the constitutional imperative of access to justice. A Taxing Officer must take into account the actual amount of work done, the time taken, the true interest of the parties, and the overarching principle that costs should be kept to a reasonable level so that justice is not put beyond the reach of litigants. 58. Applying the binding Kenya Airports Authority doctrine to the present facts, the Taxing Master's actions are entirely vindicated. Had the Taxing Master mechanically applied the 50% uplift demanded by the Advocate, the base instruction fee would have surged from Kshs. 25 million to over Kshs. 37.5 million, pushing the total bill (with VAT) well past Kshs. 43 million. 59. While the Taxing Master did not explicitly cite the impending Supreme Court jurisprudence in her brief ruling, her judicial instinct to halt the arithmetic progression at Kshs. 25,014,525/= was a sound, equitable, and perfectly Page 18 of 22 Ruling Milimani Family Misc. Application No. E020 of 2020 valid exercise of judicial discretion. The award of Kshs. 25 million for instruction fees alone is a colossal sum that more than adequately compensates the Advocate for the pleadings drawn, the injunctions secured, and the preservation of the estate. To blindly add an additional Kshs. 12.5 million based on a rigid mathematical multiplier, as urged by the Advocate, would offend the Premchand Raichand principles and the Supreme Court's directive in KAA v. Otieno Ragot. 60. Therefore, the Taxing Master's refusal to apply the 50% uplift under Schedule 10, Part B was not an error of principle, but a necessary and lawful exercise of discretion to ensure the final costs remained reasonable and proportionate to the actual labour expended. The Advocate's Reference on this ground is dismissed. Manifest Excessiveness and the Liability of the Estate 61. The final issue to be resolved is the Clients' equitable plea that the final award of Kshs. 28,864,899/= remains manifestly excessive, oppressive, and incapable of being satisfied by them in their personal capacities. They pray that if the costs are upheld, liability should be shifted entirely to the Estate of the Deceased. 62. The assessment of whether a legal fee is manifestly excessive cannot be adjudicated in an emotional vacuum; it must be tethered to the objective economic realities of the litigation. The subject matter of this litigation is an estate valued at a staggering Kshs. 3.3 billion. The litigation spanned eight years, involving highly adversarial intra-family disputes, multiple complex interlocutory applications, the preservation of multi-million-shilling assets, and high-stakes negotiations. 63. A total certified fee of approximately Kshs. 28.8 million represents less than 1% of the gross value of the estate preserved and administered. In the Page 19 of 22 Ruling Milimani Family Misc. Application No. E020 of 2020 context of the ARO scales, and considering the extensive intellectual labour, strategic manoeuvring, and professional indemnity exposure the Advocate assumed over nearly a decade, this sum is neither unconscionable nor manifestly excessive. It strikes the perfect balance required by Premchand Raichand and KAA v. Otieno Ragot. To arbitrarily reduce it further based on generalized appeals to sympathy would violate the statutory rights of the Advocate to fair remuneration. 64. The question of who bears the liability for these costs presents a more nuanced legal dilemma. 65. The Clients assert that in succession matters, legal fees are an administrative expense that must be borne by the estate. They cite Rule 55 of the Advocates Remuneration Order, which states: "The Court may order costs to be borne by the estate of a minor, lunatic, insolvent or deceased person and may give such directions as may be necessary to secure the due payment thereof". They rely heavily on Keti v. W.K Ngenoh & Co. Advocates [2023] eKLR, where the Court ruled that legal and administrative fees should be borne by the estate prior to distribution, and the Court should not apportion legal fees among individual beneficiaries. 66. The Advocate counters that Lilian Muthoni Ngatunyi and Felix Muthura Ngatunyi specifically retained the firm to advance their personal household interests within the estate against rival households, even before they were appointed as co-Administrators. Therefore, privity of contract exists directly between the Advocate and the individual Clients, rendering them jointly and severally liable in their personal capacities. 67. The analysis reveals a dual reality inherent in probate litigation. When an Advocate is retained by a beneficiary solely to fight for their inclusion or to protect their specific, isolated slice of an estate against other heirs, that is a Page 20 of 22 Ruling Milimani Family Misc. Application No. E020 of 2020 personal retainer. However, when the Advocate's legal interventions transcend personal representation and result in the preservation, consolidation, and protection of the estate as a whole—such as obtaining sweeping injunctions against the illegal sale of core estate properties by intermeddlers, or securing the appointment of their clients as official, court- recognized administrators—the Advocate's services accrue to the ultimate benefit of the general estate. 68. In this instance, the evidentiary record proves that the Advocate's interventions unequivocally benefited the entirety of the Estate of Simon Ngatunyi Chabi. The Advocate procured vital preservation orders, halted the plundering of core assets, facilitated the reconstruction of court files, and established the structured administration of the estate. It would be highly inequitable, and legally myopic, to saddle the two individual Respondents with the entire, crushing financial burden of preserving an estate that ultimately benefits all three rival households involved in the succession cause. 69. Therefore, while the Advocate retains the absolute right to execute the Certificate of Costs against the individuals who formally instructed the firm, equity, common sense, and the express provisions of Rule 55 of the ARO dictate that these costs be classified as a primary, overarching administrative expense. The Respondents, acting in their official capacity as Co- Administrators, are legally entitled—and hereby directed by this Court—to satisfy the taxed costs from the distributable, liquid assets of the Estate of Simon Ngatunyi Chabi before any final distribution to the ultimate beneficiaries is effected. 70. In light of the foregoing, this Court makes the following orders: Page 21 of 22 Ruling Milimani Family Misc. Application No. E020 of 2020 (i) The Clients' Chamber Summons Application dated 4 June 2025 is found to be devoid of merit and is hereby dismissed. (ii) The Advocate's Chamber Summons Application dated 24 May 2024 is similarly dismissed. (iii) The Ruling of the Taxing Master delivered on 13 May 2024, and the resulting Certificate of Taxation dated 27 May 2024 for the sum of Kshs. 28,864,899/=, are wholly upheld and confirmed. (iv) The awarded costs shall be classified as a primary administrative expense of the Estate of Simon Ngatunyi Chobi (Deceased). (v) Each party shall bear their own costs of the Applications. DATED AND DELIVERED AT NAIROBI THIS 30 DAY OF APRIL 2026 HELENE R. NAMISI JUDGE OF THE HIGH COURT Delivered on virtual platform in the presence of: For the Advocate/Applicant: Mr Khatete H/b Kanjama SC and Mr Macharia For the Client/Respondent: Mr. Malebe Court Assistant: Lucy Mwangi Page 22 of 22