https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11920

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **COMMERCIAL AND TAX DIVISION** **COMM. CASE NO. 511 OF 2010** **BETWEEN** **HUAWEI TECHNOLOGIES (K) LIMITED...………………………………PLAINTIFF** **AND** **CANNON ASSURANCE (K) LIMITED.………………………..……1ST DEFENDANT** **MARTIN MBURU T/A** **LIGEN INSURANCE AGENCIES………………………………...…2ND DEFENDANT** **RULING** **Introduction and Background** 1. The Plaintiff has filed a reference dated 23rd May 2025 challenging the Deputy Registrar’s ruling delivered on 9th May 2025 on the 1st Defendant’s (“the Defendant”) Party and Party Bills of Costs dated 14th May 2024 and 9th August 2024 taxed at Kshs.78,326.66/- and Kshs.105,611.66/- respectively and it seeks that the court sets aside the ruling or in the alternative, that the Bills of Costs be placed before another Taxing Master other than Hon. V.K Mochache for fresh taxation. The application is supported by grounds on its face and the supporting affidavit of **Wangalwa Oundo**, an advocate in conduct of this matter on behalf of the Plaintiff sworn on 23rd May 2025. 2. The reference has been responded to by the Defendant through the replying affidavit of its Legal Manager, **Joan Oburu**, sworn on 2nd July 2025. The parties have also supplemented their arguments by filing written submissions that are on record and which together with the pleadings I have considered and I will be making relevant references to the same in my analysis and determination below. **Analysis and Determination** 1. From the submissions and pleadings, I note that the Defendant is also challenging the findings of the Deputy Registrar. The procedure for challenging a decision of a taxing officer is provided under **Paragraph 11** of the ***Advocates Remuneration Order*** which provides as follows:- *“(1)* ***Should any party object to the decision of the taxing officer, he may within 14 days after the decision give notice in writing to the taxing officer of the items of taxation to which the 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 the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection.”*** 1. The procedure set out above is mandatory and failure to comply with it renders a reference incompetent (**see John Oganda and Company Advocates v Superclean Shine Limited [2026] KEHC 3489 (KLR)]**. I find that the Defendant's attempt to challenge the Deputy Registrar's findings through submissions and its deposition without having filed a proper reference is procedurally incompetent. By failing to lodge a reference, the Defendant cannot validly air its grievances in this forum and I will therefore disregard its objections on the Deputy Registrar’s findings and concentrate on the merits of the Plaintiff’s reference alone. 2. As stated in the introductory part, the Plaintiff seeks to have the ruling set aside or placed before a different taxing master in the alternative. It is trite law that the Court will only interfere with the decision of a taxing officer in cases where there has been shown to be an error of principle. In **Kipkorir,Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] KECA 325 (KLR)** the Court of Appeal affirmed that taxation is a matter wholly within the discretion of the taxing officer and the judge on reference will not normally interfere with the exercise of discretion by the taxing officer unless the taxing officer, erred in principle in assessing the costs. The same principle was reiterated in **Republic v Minister for Agriculture & 2 others Ex-parte Samuel Muchiri W’Njuguna & 6 others [2006] KEHC 3504 (KLR)** where Ojwang’ J.,(as he was then) held as follows:- ***The taxation of costs is not a mathematical exercise; it is entirely a matter of opinion based on experience. A court will not, therefore, interfere with the award of a taxing officer, particularly where he is an officer of great experience, merely because it thinks the award is somewhat too high or too low; it will only interfere if it thinks the award is so high or so low as to amount to an injustice to one party or the other…. 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 manifestly excessive as to justify an inference that it was based on an error of principle. Of course it would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors.*** 1. The Plaintiff stated that the Deputy Registrar erred by increasing the instruction fee on the Defendant’s Bills of Costs from Kshs.5,000.00/- to Kshs.50,000.00/-, representing a 1000% increase, without lawful justification. That she wrongly awarded a getting up fee of Kshs.16,666.66/- on the Defendant’s applications and yet such a fee is not provided for under the ***Order*** for applications and is therefore unwarranted. The Plaintiff alleges that the Deputy Registrar exhibited obvious bias by increasing the instruction fee on the Bills of Costs but failing to apply the same principle to the Plaintiff’s own Bill of Costs which demonstrates double standards and inconsistency. That the total awards of Kshs.78,326.66/- and Kshs.105,611.60/- are manifestly too high and appear calculated to unjustly enrich the Defendant and the award of Kshs.10,000.00/- for attendance costs is also stated to be manifestly exaggerated and unwarranted. 2. The Defendant responded by stating that the taxation was properly done and that the Deputy Registrar correctly exercised her discretion particularly regarding the award of instruction fees for the applications. It also urges the court disregard the Plaintiff’s averments of bias, favoritism and discrimination. 3. I note that at para. 37 of the ruling, the Deputy Registrar held that *"Considering the industry that was put by the defendant in filing a replying affidavit, the nature and the importance of the cause, the amount involved, the interest of the parties and general conduct of the proceedings, this court taxes a reasonable instruction fee of Kshs.50,000/-."* I find that she provided reasons effort and industry in filing the replying affidavit, she considered the nature and importance of the cause, the amount involved and the interests of the parties and the general conduct of the proceedings before awarding Kshs.50,000.00/- as instruction fees for the applications. The Plaintiff's argument that the Deputy Registrar provided "no reasons" is factually incorrect and this ground of objection is hereby dismissed. 4. On getting up fees, this court (Dr. Mugambi J.,) in **Royal Ngao Holdings Limited v NK Brothers Limited (Miscellaneous Application E683 of 2020) [2023] KEHC 19428 (KLR)** held as follows: - ***Getting up Fees*** *21. By law getting up fees is charged at one third of the instruction fees. The applicant’s grievance as that the taxing master should not have awarded getting up fees since the two applications proceeded by* *affidavit evidence.* *22. The ARO under schedule V1 provides as follows with respect to getting up fees;* *In any case in which a denial of liability is filed or in which issues for trial are joined by the pleadings, a fee for getting up and preparing the case for trial shall be allowed in addition to the instruction fee and shall be not less than one-third of the instruction fee allowed on taxation:* *Provided that –* *This fee may be increased as the taxation officer considers reasonable but it does not include any work comprised in the instruction fee;* *no fee under this paragraph is chargeable until the case has been confirmed for hearing,(emphasis) but an additional sum of not more than 15 per cent of the instructions fee allowed on taxation may, if the judge so directs, be allowed against the party seeking the adjournment in respect of each occasion upon which a confirmed hearing is adjourned;* *in every case which is not heard the taxing officer must be satisfied that the case has been prepared for trial under this paragraph.* *23.In my opinion, a strict interpretation of Schedule VI of the ARO means that for getting up fees to apply, two conditions must be satisfied and that is:* *i.Either a case has been confirmed for hearing or* *ii.If not confirmed, that the case has been prepared for trial.* *24.I have no difficulty in finding that schedule VI therefore anticipates that once a matter has gone through all the motions, including interlocutory applications, it may finally be confirmed or it is finally ready for hearing of witness testimony. It is at this point that getting up fees would be applicable. Had the law makers intended to have getting up fees charged on all applications, nothing would have been harder than to state so expressly.* *25.I am of the view that having getting up fees charged on each application argued by Counsel would create an absurdity and would render legal fees outrageously high in contradiction with article 50 of the 2010 Constitution. I would therefore concur with the finding of the Court in Kenya Agricultural & Livestock Research Organisation (Formerly Kenya Agricultural Research Institute v Njama Limited [2017] eKLR that “Because there was no trial; no preparation of witnesses who would have given viva voce evidence; and no witness statements prepared by the advocate, getting up fees was not awardable”.* *26. Similarly, in MITS Electrical Company Limited Vs National Industrial Credit Bank Limited misc. Application no 429 of 2004, Kasango J. accepted the respondent’s contention that a getting up fee contemplates a situation in which there is a full trial, at which evidence is adduced. The Learned Judge stated as follows with respect to getting up fees:* *“…clearly contemplates where counsel is involved in preparation of witnesses and witness statements etc. This was not the case here. The application was supported by affidavit and no viva voce evidence was adduced”.* *27.In this case, the fact that the two applications were canvassed by way of affidavit evidence is not controverted. Since no witnesses testified and since there was no evidence or submission led to show that the matters had been listed for hearing or confirmed for hearing, it is my finding that the getting up fees should not have been awarded.* 1. From the above, the two conditions for awarding a getting up fee are that the case has been confirmed for hearing or the case has been prepared for trial and if not confirmed, the taxing officer must be satisfied that preparation for trial has occurred. It would appear that the law does not provide for getting up fees on routine interlocutory applications. Interlocutory applications are not typically confirmed for hearing in the same way as a main suit. They are heard on a priority basis, often through affidavit evidence and the two subject applications in question were in respect of re-opening the suit and related procedural matters. They did not involve trial preparation and the court cannot imply a right to getting up fees where none is expressly stated. 2. I find that by awarding Kshs.16,666.66/- as getting up fees on these applications, the Deputy Registrar exceeded the scope of the ***Order***, applied a provision intended for trials to interlocutory proceedings and committed an error of principle by taking into account a factor, that is, trial preparation, that was irrelevant to the matters before her. Therefore, the sums of Kshs. 16,666.66/- awarded as getting up fees are set aside. **Conclusion and Disposition** 1. In the foregoing, I find that the Plaintiff’ application dated 23rd May 2025 succeeds but only to the extent that the taxation in respect of the items on getting up fees in the Bills of Costs dated 14th May 2024 and 9th August 2024 are hereby set aside. The Plaintiff is awarded half the costs of this application assessed at Kshs. 10,000.00/-. **DATED SIGNED AND DELIVERED virtually at NAIROBI this 17TH DAY OF JULY 2026** **............................................................................** **J.W.W. MONGARE** **JUDGE** **IN THE PRESENCE OF** 1. N/A for the Applicant. 2. Ms. Wangeci Mwangi for the Respondents. 3. Amos - Court Assistant