https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9259

Akello & Karuga t/a Akello Karuga & Company Advocates v Mathews & another (Miscellaneous Application E074 of 2023) [2026] KEHC 9259 (KLR) (Commercial and Tax) (18 June 2026) (Ruling) Neutral citation: [2026] KEHC 9259 (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 1.The Applicant's Chamber Summons dated 13th January 2026 is brought under Paragraph 11(2) of the Advocates (Remuneration) Order seeking an order that the taxation of the 1st Respondent's Party and Party Bill of Costs undertaken on 19th December 2025 by Hon. Noelle Kyanya, Deputy Registrar, be set aside and remitted for fresh taxation before the same or another taxing officer. 2.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. 3.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. 4.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 5.I have carefully considered the application, the responses thereto and the submissions on record. The background to the dispute is not controversial. The impugned Bill of Costs arose from proceedings in which the Applicant's Advocate-Client Bill of Costs was struck out pursuant to a Preliminary Objection. A subsequent reference challenging that decision was dismissed with costs. The 1st Respondent thereafter filed a Party and Party Bill of Costs dated 4th July 2025. 6.In the ruling delivered on 19th December 2025, the taxing officer held that Schedule 6 of the Advocates Remuneration Order applied, awarded instruction fees of Kshs. 50,000.00, getting-up fees of Kshs. 16,666.00 and ultimately taxed the Bill at Kshs. 183,910.00 after taxing off Kshs. 137,695.37 from the amount claimed. 7.The Applicant faults the taxation principally on the grounds that the taxing officer failed to appreciate the value of the subject matter, improperly awarded getting-up fees, wrongly allowed service charges and drawing fees and committed computational errors. 8.Before considering the merits, I shall deal with the issue raised by the Respondents regarding the competence of the reference. Competence of the Reference 9.The Respondents submitted that the Applicant failed to comply with Paragraph 11(1) and (2) of the Advocates Remuneration Order and that this court's jurisdiction was therefore improperly invoked. 10.Paragraph 11 of the Advocates Remuneration Order sets out the procedure for objecting to taxation. The rationale behind the provision is to ensure that a taxing officer is afforded an opportunity to furnish reasons for the taxation before the matter is placed before a judge by way of reference. However, courts have repeatedly held that where the taxing officer has incorporated reasons in the ruling, a request for reasons would serve no useful purpose. 11.In Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR, the Court of Appeal affirmed that where reasons are contained in the ruling, the objector may proceed directly by way of reference. The same principle was reiterated in Evans Thiga Gaturu, Advocate v Kenya Commercial Bank Ltd [2012] eKLR and Ahmednasir Abdikadir & Co Advocates v National Bank of Kenya Ltd [2007] eKLR. 12.In the present case, I have perused the ruling by the taxing master and note that the same was detailed. The taxing officer set out the applicable schedule, explained the basis of instruction fees, addressed item 2 on getting-up fees and specified how each category of items was assessed. 13.Further, the ruling was delivered on 19th December 2025 while the present reference was filed on 13th January 2026. Taking into account Order 50 Rule 4 of the Civil Procedure Rules, which excludes the period between 21st December and 13th January from computation of time, I am satisfied that the reference was filed within time. 14.I therefore reject the preliminary objection and proceed to consider the reference on its merits. Whether the Taxing Master Erred in Principle 15.The law governing references from taxation is settled. A judge will not interfere with the exercise of discretion by a taxing officer unless it is shown that the taxing officer erred in principle, considered irrelevant matters, omitted relevant matters or arrived at an award so manifestly excessive or low as to justify an inference of error in principle. 16.In First American Bank of Kenya Ltd v Shah & 2 Others [2002] eKLR, the Court stated:"It is trite law that the court cannot interfere with the taxing officer's decision on taxation unless it is shown that either the decision was based on an error of principle or the fee awarded was so manifestly excessive as to justify an inference that it was based on an error of principle." 17.The Court of Appeal in Joreth Ltd v Kigano & Associates [2002] eKLR reiterated that where the value of the subject matter is not ascertainable from the pleadings, judgment or settlement, the taxing officer is entitled to exercise discretion taking into account the nature and importance of the matter, the interests of the parties, the conduct of the proceedings and all relevant circumstances. 18.On Instruction Fees, the Applicant submitted that the taxing officer ought to have pegged instruction fees on Kshs. 255,000.00, being the amount allegedly established in earlier proceedings as the agreed legal fees between the Applicant and the 1st Respondent. The Applicant relies heavily on Nyaundi Tuiyott & Co Advocates v Tarita Development Ltd [2016] eKLR. 19.I do not agree with that submission. 20.The taxation before the Deputy Registrar did not concern a dispute over the agreed fee of Kshs. 255,000.00. Rather, it concerned costs arising from contested proceedings in which the Applicant's Bill of Costs was struck out and a subsequent reference dismissed. The taxing officer expressly found that the Bill arose from an opposed application and not a substantive suit with an ascertainable monetary value. 21.Once the taxing officer came to that conclusion, she was entitled to resort to the discretionary jurisdiction recognized in Joreth Ltd v Kigano & Associates (Supra). 22.I have read the ruling carefully. I am satisfied that the taxing officer rightly considered the nature of the proceedings, the applicable schedule and the authorities cited before arriving at an instruction fee of Kshs. 50,000.00. 23.The Applicant has not demonstrated that the taxing officer proceeded on a wrong principle of law. What the Applicant seeks to do by the present application is to invite the court to substitute its own view of what would have been an appropriate instruction fee. That is not the function of a judge sitting on a reference. 24.Regarding Getting-up Fees, the Applicant further contended that getting-up fees were improperly awarded because the proceedings did not proceed to trial. 25.I have perused the impugned ruling and note that the taxing officer awarded one-third of the instruction fee amounting to Kshs. 16,666.00. The record shows that the proceedings giving rise to the Bill involved a Preliminary Objection, substantive applications, affidavits and written submissions over an extended period. The Respondents point out that the matter generated numerous attendances and extensive preparation. 26.In Pineapples Edge Limited v Kipkenei & Co Advocates [2025] eKLR, relied upon by the 1st Respondent, the court accepted that getting-up fees may be justified where substantial preparation for hearing has been undertaken, notwithstanding that the matter does not proceed to a full trial. 27.I associate with that view. In the circumstances of this case, I am unable to say that the taxing officer acted on the wrong principle in awarding getting-up fees. 28.The Applicant also challenged service charges, drawing fees, folio charges and attendances. The ruling reveals that the taxing officer specifically set out the applicable rates for drawing, perusal, attendances, service and correspondence. She reduced a significant number of the items presented before her and taxed off Kshs. 34,050.00 in respect of folio-based items alone. This approach in my view demonstrates a proper exercise of taxing discretion. The Applicant has not identified any particular item where the taxing officer misapprehended the applicable schedule or applied a wrong principle. 29.Finally, the Applicant argued that the drawing fees, perusals, attendances, and correspondences were inflated, and that the final calculations suffer from an arithmetical error. However, from the taxation ruling, I am unable to cite any error, The taxing master clearly identified the amount claimed in the Bill of Costs (Kshs. 321,605.37), the amount taxed off (Kshs. 137,695.37), and the amount finally awarded (Kshs. 183,910.00). 30.Accordingly, contrary to the assertions by the Applicant, I find no arithmetic/computational error on the part of the taxing master. 31.The upshot of the foregoing is I find no error of principle, misdirection or manifest excess to justify interference with the taxation. 32.Accordingly, the Chamber Summons dated 13th January 2026 is therefore dismissed. 33.The taxation delivered on 19th December 2025 is upheld. 34.The Applicant shall bear the costs of the reference, which is hereby assessed at Kshs. 50,000/=. 35.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/AKaruga………………for the AppellantOlaha……………for the 1st RespondentMiituga…………...for the 2nd Respondent