https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9238

Akello & Karuga t/a Akello Karuga & Company Advocates v Mathews & another (Miscellaneous Application E074 of 2023) [2026] KEHC 9238 (KLR) (Commercial and Tax) (18 June 2026) (Ruling) Neutral citation: [2026] KEHC 9238 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Miscellaneous Application E074 of 2023 MO Ado, J June 18, 2026 Between George Brian Akello & Andrew Mbugua Karuga T/A Akello Karuga & Company Advocates Applicant and Callista Mowo Mathews 1st Respondent Gloria Ciya Biwott & Allan Mukura Mugeni T/A Biwott & Mugeni Advocates 2nd Respondent Ruling Introduction 1.This is a reference under Paragraph 11(2) of the Advocates (Remuneration) Order challenging the decision of the taxing master delivered on 19th December 2025, whereby the 1st Respondent’s Party and Party Bill of Costs dated 4th July 2025 was taxed at Kshs. 183,910. 2.The Applicant seeks to set aside the taxation and have the bill remitted for re-taxation. 3.The application is supported by the affidavit of George Brian Akello sworn on the same date, and the grounds set out therein. In a nutshell, the Applicant contends that the taxing master:i.Failed to properly determine the value of the subject matter;ii.Committed an arithmetical error;iii.Erroneously allowed getting-up fees in a matter that did not proceed to trial;iv.Erroneously allowed service costs where service was electronic; andv.Improperly allowed drawing fees in respect of annexures. 4.The application is opposed by the 1st Respondent through the Replying Affidavit sworn by Callista Mowo Mathews on 15th January 2026. The 2nd Respondent filed Grounds of Opposition dated 15th January 2026. 5.The Application was canvassed by way of written submissions. The Applicant filed submissions dated 11th March 2026, whilst the 1st Respondent’s submissions are dated 29th April 2026. No submissions will be filed by the 2nd Respondent. Analysis and Determination 6.I have carefully considered the pleadings and submissions on record. The following issues arise for determination:i.Whether the reference is competentii.Whether the Taxing Master erred in principle. Whether the Reference is Competent 7.The Respondents raised the preliminary objection that the reference is incompetent for failure to comply with Paragraph 11(1) and (2) of the Advocates (Remuneration) Order and for being filed out of time. 8.Paragraph 11 provides that an objector shall, within fourteen days of the decision, give notice of objection and thereafter file a reference within fourteen days of receiving reasons. In particular, Paragraph 11(1) and (2) of the ARO states that:“(1)Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.(2)The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from receipt of the reasons apply to a judge by chamber summons…” 9.The Applicant’s position is that the ruling of the taxing master contained sufficient reasons and therefore no request for reasons was necessary. Further, reliance was placed on Order 50 Rule 4 of the Civil Procedure Rules, which excludes the period between 21st December and 13th January when computing time. 10.I agree with the Applicant’s position. Where the ruling of the taxing officer contains reasons, it is unnecessary to request further reasons. Moreover, taking into account the excluded period, the reference filed on 13th January 2026 cannot be said to be out of time. 11.The preliminary objection is therefore without merit and is hereby dismissed. Whether the Taxing Master erred in principle 12.The principles governing interference with taxation are settled. In Joreth Ltd v Kigano & Associates [2002] eKLR, the Court held that the court will not interfere with the taxing officer’s discretion unless there is an error of principle or the award is so manifestly excessive or low as to justify an inference of error. 13.Similarly, in First American Bank of Kenya Ltd v Shah [2002] 1 EA 64, the court emphasised that it cannot substitute its discretion for that of the taxing officer merely because it would have reached a different conclusion. 14.On instructions fees, The Applicant contends that the taxing master failed to determine the value of the subject matter and ought to have based the instruction fees on Kshs. 255,000. 15.Schedule 6 of the Advocates (Remuneration) Order, which provides that instruction fees to be assessed based on the value of the subject matter as determined from the pleadings, judgment or settlement. 16.In Joreth Ltd v Kigano & Associates (supra), the Court stated that where the value of the subject matter is not ascertainable, the taxing officer is entitled to exercise discretion taking into account the nature and importance of the matter. 17.In the present case, I note from the record that the taxing master found that the bill arose from an application rather than a substantive suit with an ascertainable monetary value and therefore exercised discretion to assess instruction fees at Kshs. 50,000. 18.I find no error in that approach. The alleged sum of Kshs. 255,000, the record reveals, relates to an advocate–client fee arrangement and cannot be equated to the value of the subject matter in the proceedings giving rise to the bill of costs. 19.Secondly, regarding the getting-up fees, the Applicant argues that it was improperly awarded since the matter did not proceed to trial. 20.Under Schedule 6 of the Advocates (Remuneration) Order, there is no dispute that getting-up fees are chargeable where a matter has been prepared for hearing. 21.The Court notes that in its Ruling of 27 February 2025 which resulted into the re-taxation, the question of whether or not getting up fees was awardable had been settled. The Court at paragraph 36 of that ruling stated that:“In view of the above, I find that the Taxing officer misdirected herself and erred in law when she proceeded to allow getting up fees without certification of the court.” 22.The matter was consequently remitted for re-taxation with the following directions/orders: -“(a)……….(b)The Client’s Chamber Summons Application/Reference dated 24th September 2024 succeeds, but only to the extent that the decision by the Taxing Officer dated 5th September 2024 awarding getting up fees is hereby set aside.(c)The Bill of Costs dated 11th July 2024 be and is hereby re-assessed by removing the getting up fees of Kshs. 54,933/-.(d)The matter is returned to the Taxing Officer to tax off getting up fees and issue the new Certificate of Costs in compliance with this ruling.(e)Each party shall bear their own costs. 23.In the premises, the Court finds that the failure by the Deputy Registrar to comply with this Court’s direction on the question of getting up fees constituted an error of principle and cannot therefore stand. The same is hereby quashed and set aside. 24.Thirdly, the Applicant contended that there was a computational error, and that the taxing master erred in awarding costs despite that service was effected electronically, and that no costs had been demonstrated. I am unable to see any merit in these contentions. 25.From the record, I note that the taxing master exercised her discretion and allowed a modest amount for service in accordance with the scale under the Advocates (Remuneration) Order. it is trite that a judge sitting on a reference ought not to substitute his or her opinion for that of the taxing master merely because a different conclusion may have been reached. 26.The upshot of the foregoing is that the Chamber Summons dated 13th January 2026 partially succeeds, but only to the extent that the Bill of Costs is hereby re-assessed by removing the getting up fees of Kshs. 54,933/-. 27.The taxing master is hereby directed to issue a new Certificate of Costs in compliance with this ruling. 28.Each party shall bear their own costs. 29.It is so ordered. DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 18TH DAY OF JUNE 2026HON. MR. JUSTICE MOSES ADOJudge of the High CourtIn the Presence of:Moses C/AOginga………………for the AdvocateN/A……………for the Client