https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12736

Hacco Industries Limited & another v Doshi Ironmongers Limited & another (Miscellaneous Application E231 of 2025) [2026] KEHC 12736 (KLR) (7 August 2026) (Ruling) Neutral citation: [2026] KEHC 12736 (KLR) Republic of Kenya In the High Court at Mombasa Miscellaneous Application E231 of 2025 J Ngaah, J August 7, 2026 Between Hacco Industries Limited 1st Applicant Societe Bic 2nd Applicant and Doshi Ironmongers Limited 1st Respondent Ashok Labhanker Doshi 2nd Respondent Ruling Introduction 1.There are two matters before the court. The first is the applicants’ chamber summons dated 17th July 2025, by which the applicants seek to set aside the ruling of the Hon. Chief Magistrate delivered on 8th July 2025 in Mombasa MCCC No. 2368 of 2015 assessing the applicants’ costs at Kshs 13,075/=, and to have those costs re-assessed. The second is the respondents’ notice of preliminary objection dated 3rd September 2025, by which the respondents contend that this court lacks jurisdiction to entertain the chamber summons and that the application is fatally defective and ought to be struck out. 2.Because the preliminary objection challenges the jurisdiction of the court and the very competence of the application, it must be determined first. If it succeeds, that is the end of the matter and the chamber summons falls away; if it fails, the court proceeds to consider the chamber summons on its merits. I therefore take the objection first. 3.I have considered the chamber summons and the supporting affidavit of Andrew Mukite Musangi sworn on 17th July 2025, together with its annextures, the notice of preliminary objection, and the parties’ respective written submissions, being the applicants’ submissions dated 25th February 2026 and the respondents’ submissions dated 2nd March 2026. Background 4.The genesis of the matter is Mombasa HCCC No. 57 of 2003, in which the respondents, as plaintiffs, sued the applicants, as defendants, by a plaint dated 24th March 2003 seeking, inter alia, damages for libel, an injunction, costs and interest. By an order made on 2nd December 2015 the suit was transferred to the Magistrates’ Court and re-numbered Mombasa MCCC No. 2368 of 2015. 5.On 17th September 2021 the trial court (Hon. F. N. Kyambia, Chief Magistrate) delivered judgment in favour of the respondents and awarded them Kshs 15,000,000/= as damages for compensation, together with costs and interest. The respondents extracted a decree and a certificate of costs reflecting the principal sum of Kshs 15,000,000/=, interest of Kshs 65,000/= and party-and-party costs of Kshs 504,175/= (the latter having, it is common ground, been assessed at Kshs 445,000/= under the Advocates (Remuneration) Order 2014). 6.The applicants appealed to this court in Mombasa HCCA No. 141 of 2021. On 21st November 2023 Kizito Magare J. allowed the appeal and set aside the judgment of the trial court of 17th September 2021. The learned Judge awarded the applicants the costs of the appeal, assessed at Kshs 225,000/=, as well as the costs of the lower court. 7.Armed with that decision, the applicants, by a letter dated 6th February 2025 addressed to the Magistrates’ Court and copied to the respondents, requested the assessment of their costs and the issuance of a certificate of stated costs in their favour, expressed to be pursuant to Order 21 Rule 9C of the Civil Procedure Rules, 2010, and enclosing a draft. The respondents filed a response to the statement of costs dated 8th February 2025. The parties then filed their respective submissions on the costs. 8.The assessment came up before Hon. J. B. Kalo, Chief Magistrate, who delivered his ruling on 8th July 2025 and assessed the applicants’ costs at Kshs 13,075/=. In doing so he took the view, first, that the figure of Kshs 15,000,000/=, having been set aside by the High Court, could not form the basis for the assessment of costs; and, secondly, that the order applicable to the assessment was the Advocates (Remuneration) Order 1997 and not the Advocates (Remuneration) Order 2014. It is that ruling which has provoked the present chamber summons, expressed to be brought under Rules 2 and 11(1) and (2) of the Advocates (Remuneration) Order and Sections 1A, 1B, 3A and 27 of the Civil Procedure Act. The Preliminary Objection 9.The preliminary objection is founded upon six grounds, which may be summarised as follows:(a)that in delivering the ruling of 8th July 2025 the Hon. Chief Magistrate did not sit as a taxing officer or a registrar, but as a regular magistrate;(b)that there was no bill of costs before the trial magistrate that was taxed, and that the ruling was an ordinary ruling appealable by a memorandum of appeal and not by a chamber summons;(c)that the ruling is not a decision of a taxing officer that may be challenged by a chamber summons or reference under Rule 11 of the Advocates (Remuneration) Order;(d)that the ruling was an order for costs under Order 21 Rule 9C of the Civil Procedure Rules, 2010, and not a decision emanating from a bill of costs, and cannot be challenged by a reference under Rule 11 of the Advocates (Remuneration) Order;(e)that the applicants did not obtain the leave of the court necessary to appeal against the impugned decision; and(f)that the application is fatally defective for having been supported by an affidavit sworn by counsel on record in a highly contentious matter. 10.On the strength of these grounds the respondents pray that the application and the entire cause be struck out with costs. The Parties’ Submissions On the preliminary objection 11.The respondents submit that the objection raises a pure point of law. Their central contention is that the decision of 8th July 2025 was not a taxation of a bill of costs by a taxing officer, but an ordinary assessment of party-and-party costs by a magistrate under Order 21 Rule 9C of the Civil Procedure Rules. A “taxing officer”, they say, is defined by Rule 10 of the Advocates (Remuneration) Order as the Registrar or a district or deputy registrar of the High Court, and a Chief Magistrate is none of these. They rely on Patrick v Nyabuto [2024] KEHC 15203 (KLR), in which the High Court observed that party-and-party costs from the magistrate’s courts are assessed and not taxed, and are the preserve of the subordinate court and not a taxing officer. It follows, they argue, that Rule 11 of the Order does not apply, that the decision was appealable only by a memorandum of appeal under Order 42 within thirty days, and that, no appeal having been filed, this court’s jurisdiction was never invoked. They add that ascertaining the character of the decision requires the court merely to examine the record and is an exercise of law, not of fact. 12.The applicants submit that the objection is not a proper preliminary objection because it invites the court to interrogate the lower court proceedings and the character of the ruling, which are mixed questions of fact and law, and to exercise discretion; they rely on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, Hassan Ali Joho v Suleiman Said Shahbal [2014] eKLR and IEBC v Cheperenger [2015] KSHSC 2 (KLR). On jurisdiction, they invoke the supervisory jurisdiction of the High Court over subordinate courts under Article 165(3) and (6) of the Constitution, and the court’s inherent power under Sections 1A, 1B and 3A of the Civil Procedure Act. They rely on Ruto v Maru [2024] KEHC 2378 (KLR), which adopts Mathiu Elijah Solo v Joseph Murira [2009] eKLR, for the proposition that although Rule 11 does not in terms apply to a magistrate’s assessment, there being a lacuna in the Order, the High Court may in its inherent power check such assessments, and a party who moves the court by chamber summons cannot be faulted for doing so. On the merits 13.On the merits, the respondents support the magistrate’s assessment. They submit that the applicable scale is the Advocates (Remuneration) Order 1997, because the suit was filed in 2003 and the applicable Order is that in force at the date of filing; they rely on Mwangangi & Company Advocates v Machakos County [2018] eKLR. They stress that the transfer of the suit to the Magistrates’ Court in 2015 was not a fresh filing. On the value of the subject matter, they submit that, the trial judgment having been set aside, the applicants were wholly successful defendants; that under paragraph 1 of Schedule VII of the 1997 Order the relevant figure for a wholly successful defendant is “the sum sued for”; that the plaint sought only unliquidated damages for libel and no specific sum; and that the assessment therefore falls to be made under paragraph 2 of Schedule VII, which caps instruction fees at Kshs 18,000/=. They contend that the award of Kshs 9,000/= as instruction fees, and the further sums of Kshs 300/= for the application, Kshs 3,375/= for fifteen attendances and Kshs 400/= for service, are correct under the 1997 Order and yield the total of Kshs 13,075/=. 14.The applicants submit that the magistrate erred in principle. They contend that the applicable scale is the Advocates (Remuneration) Order 2014, the matter having been heard and determined between 2015 and 2021 when that Order was in force, and the respondents’ own earlier certificate having been drawn under it. On the value of the subject matter, they submit that once judgment has been entered the value is pegged on the judgment, and that the dispute concerned the figure of Kshs 15,000,000/=, which is therefore the value for the purpose of assessing instruction fees; they rely on Joreth Ltd v Kigano & Associates [2002] eKLR and Peter Muthoka & another v Ochieng & 3 others [2019] KECA 597 (KLR). They accordingly seek instruction fees of the order of Kshs 445,000/= and correspondingly higher sums on the other items, and pray that the assessment be set aside. Issues for Determination 15.Two issues arise. The first is whether the preliminary objection is well taken, that is, whether, as a matter of law, a magistrate’s assessment of costs is amenable to challenge by way of reference or only by way of appeal, and in consequence whether this court has jurisdiction to entertain the chamber summons. The second, which arises only if the objection fails, is whether the applicants have demonstrated an error of principle warranting the setting aside of the magistrate’s assessment. Analysis and Determination The preliminary objection 16.The objection is, in substance, an objection to the jurisdiction of this court and to the competence of the mode by which the applicants have moved it. An objection of that character is the paradigm of a preliminary objection. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, Law JA said:… a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. 17.Sir Charles Newbold P. added that such an objection is argued on the assumption that the pleaded facts are correct, and cannot be raised where a fact must be ascertained or where what is sought is the exercise of judicial discretion. To the same effect is Oraro v Mbaja [2005] 1 KLR 141, in which Ojwang J. (as he then was) described a preliminary objection as a point of law which must not be blurred with factual details liable to be contested and proved by evidence. And where the objection goes to jurisdiction, Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 requires the court, if it finds it has no jurisdiction, to down its tools. 18.I am satisfied, at the threshold, that the objection is properly taken as a preliminary point. The question whether an assessment of costs by a magistrate is subject to challenge by way of appeal or by way of reference is a question of law, not of fact. It does not turn upon what was placed before the magistrate, or upon the manner in which the assessment was conducted; it turns upon the legal character of a magistrate’s assessment of costs and upon the avenues which the law provides for impugning it. A right of appeal is a creature of statute, and so is a right of reference; whether either lies against a given decision is determined by the governing statute and rules, and is therefore a matter of law: Nyutu Agrovet Limited v Airtel Networks Kenya Limited [2019] KSHSC 11 (KLR). The applicants’ contention that the objection raises mixed questions of fact and law, and so cannot be entertained as a preliminary objection, is for that reason misconceived. I proceed to determine the question as one of law. 19.So determined, the first limb of the respondents’ argument is correct. A “taxing officer” is defined by Rule 10 of the Advocates (Remuneration) Order as the Registrar or a district or deputy registrar of the High Court; a Chief Magistrate is not such an officer. Party-and-party costs in the subordinate courts are, by Order 21 Rules 9 to 9D of the Civil Procedure Rules, assessed by the court and not taxed by a taxing officer, as the High Court observed in Patrick v Nyabuto [2024] KEHC 15203 (KLR). It follows, as a matter of law and irrespective of the form the proceedings below assumed, that the decision of 8th July 2025 was not a taxation, and that a reference under Rule 11 of the Order, which lies only against “the decision of the taxing officer”, does not, in strictness, lie against it. 20.That conclusion does not, however, carry the respondents to their further submission that this court is without jurisdiction. The High Court is vested with supervisory jurisdiction over the subordinate courts by Article 165(6) and (7) of the Constitution, and with inherent power preserved by Sections 1A, 1B and 3A of the Civil Procedure Act, which the applicants pleaded alongside Rule 11. The position in law is that, although Rule 11 does not in terms apply to a magistrate’s assessment, the resulting lacuna does not leave an aggrieved party remediless: the High Court may in its inherent power review such an assessment, and a party who moves it by chamber summons, the very vehicle Rule 11 prescribes, is not to be faulted for doing so. That was the reasoning of Kasango J. in Mathiu Elijah Solo v Joseph Murira [2009] eKLR, adopted in Ruto v Maru [2024] KEHC 2378 (KLR), with which I respectfully agree. To drive the applicants from the seat of justice merely because their application bears the label of a Rule 11 reference, rather than that of an application invoking the court’s inherent and supervisory jurisdiction, would be to prefer form to substance, contrary to Article 159(2)(d) of the Constitution and the overriding objective. I add, lest I be misunderstood, that jurisdiction cannot be conferred by consent; the point is that the jurisdiction exists, in the supervisory and inherent powers of the court, independently of Rule 11. 21.The remaining grounds do not assist the respondents. Ground (e), that leave to appeal was not obtained, presupposes that the challenge is an appeal; it is not — it is an invocation of the court’s supervisory and inherent jurisdiction, for which no such leave is required. Ground (f), that the supporting affidavit was sworn by counsel on record in a highly contentious matter, fares no better: an advocate may depose to facts within his knowledge, and where the affidavit is, as here, largely narrative and procedural, recounting the history of the proceedings and exhibiting the record, the objection goes to the weight to be attached to it and not to the competence of the application (Order 19 rule 3(1) of the Civil Procedure Rules). 22.For these reasons the notice of preliminary objection is overruled. This court has jurisdiction to entertain the applicants’ challenge to the magistrate’s assessment. The merits of the reference 23.It does not follow, however, that the challenge succeeds. In reviewing an assessment of costs, as on a reference from a taxation, this court does not assess the costs afresh as though at first instance. It will interfere only where the assessing officer has erred in principle or misdirected himself, or where the award is so manifestly excessive or inadequate as to betray such an error or to occasion injustice: Premchand Raichand Ltd v Quarry Services of East Africa Ltd [1972] EA 162; Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR. Questions of quantum, as distinct from principle, are pre-eminently for the officer who made the assessment. The applicants advance two matters of principle, to which I now turn. 24.First, the applicable Order. The magistrate applied the Advocates (Remuneration) Order 1997. The orthodox position is that the applicable Order is that in force when the suit was filed. In Mwangangi & Company Advocates v Machakos County [2018] eKLR the court held that where the suit was filed in 1998, the applicable Order was that of 1997. This suit was filed in 2003. The applicants’ contention that the 2014 Order applies rests, in part, on the assertion that the suit was “filed” in the Magistrates’ Court in 2015; but that is not so. The suit was filed in 2003 and merely transferred, and renumbered, in 2015. Transfer is not filing; no fresh suit was instituted and no fresh filing fee paid, and the renumbering was an administrative incident of the transfer. Nor does the applicants’ reliance on the respondents’ earlier certificate of costs, said to have been drawn under the 2014 Order, advance matters: that certificate formed part of the decree that was set aside on appeal and has no continuing force, and an assessment made on a mistaken footing does not bind the court to repeat the mistake. In applying the 1997 Order the magistrate did not err in principle. At the very least, the choice between the two Orders was a principled one, supported by authority, and a reasonable difference of view upon it would not warrant this court’s interference. 25.Secondly, the value of the subject matter. The magistrate declined to treat the figure of Kshs 15,000,000/= as the value of the subject matter because it had been set aside on appeal. The applicants say this was wrong: once judgment is entered, they submit, the value is pegged on the judgment, and the dispute concerned the sum of Kshs 15,000,000/=. The submission does not withstand scrutiny under the very Order that governs the assessment. Paragraph 1 of Schedule VII of the 1997 Order fixes the scale by reference to “the sum found due” in the case of a successful plaintiff, or “the sum sued for” in the case of a wholly successful defendant. Upon the setting aside of the trial judgment and the dismissal of the respondents’ suit, the applicants were the wholly successful defendants. The relevant figure is therefore “the sum sued for”, but the plaint sought damages for libel, which are unliquidated, together with an injunction, costs and interest, and no specific sum was sued for. Paragraph 1 thus yields no ascertainable figure, and the assessment falls to be made under paragraph 2 of Schedule VII, which provides for such costs as the court in its discretion awards where “no specific sum is sued for, claimed or awarded in the judgment”, subject to a floor of Kshs 3,600/= and a ceiling of Kshs 18,000/=. 26.The authorities the applicants invoke do not carry them further. Joreth Ltd v Kigano & Associates [2002] eKLR and Peter Muthoka & another v Ochieng & 3 others [2019] KECA 597 (KLR) hold that the value of the subject matter is to be determined from the pleadings, the judgment or the settlement, and that where a judgment has been entered the value is pegged on the judgment; but they hold, in the same breath, that where the value is neither discernible nor determinable from those sources the officer must resort to his discretion. Here there is no subsisting judgment awarding Kshs. 15,000,000/=. That judgment was set aside; the operative outcome is the dismissal of the respondents’ claim, which awards no sum at all. The applicants cannot, having procured the setting aside of the award of Kshs 15,000,000/=, simultaneously invoke that same award as the measure of the value of the subject matter for their own costs; they may not approbate and reprobate. The magistrate was therefore entitled, indeed correct, to decline to assess instruction fees on the footing of Kshs 15,000,000/=, and to proceed under paragraph 2 of Schedule VII. His award of Kshs 9,000/=, being one-half of the permitted maximum, discloses no error of principle. 27.The remaining items fall away with the two principal contentions. The sums allowed for the application, for the fifteen attendances and for service are governed by the scale in Schedule VII of the 1997 Order; the figures the magistrate adopted are consistent with that scale, and the total of Kshs 13,075/= is coherently reconstructable upon it. No disbursements were allowable, both because Schedule VII of the 1997 Order made no provision for them and because none were proved. These are, in any event, matters of quantum within the discretion of the assessing officer, and no error of principle has been shown. It follows that the applicants have not made out a case for this court’s interference, and the reference must fail. 28.For completeness, and lest the question of jurisdiction be viewed differently on any future occasion, I record that even if the preliminary objection had succeeded in part, the applicants’ challenge would in any event have failed on its merits for the reasons given above. 29.In the result, I make the following orders:(a)The notice of preliminary objection dated 3rd September 2025 is overruled.(b)The applicants’ chamber summons dated 17th July 2025 is dismissed.(c)The ruling of the Hon. Chief Magistrate delivered on 8th July 2025 in Mombasa MCCC No. 2368 of 2015, assessing the applicants’ costs at Kshs 13,075, is upheld.(d)The applicants shall bear the respondents’ costs of the chamber summons; there shall be no order as to the costs of the preliminary objection.It is so ordered. SIGNED, DATED AND PUBLISHED ON 7 AUGUST 2026NGAAH JAIRUSJUDGE