Kariithi v GN Thiong’o Associates (Miscellaneous Application E262 of 2025) [2026] KEHC 11082 (KLR) (22 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **FAMILY DIVISION** **IN THE MATTER OF THE ADVOCATES RENUMERATION ACT** **IN THE MATTER OF THE TAXATION BETWEEN ADVOCATE AND CLIENT** **MISC. APPLICATION NO. E262 OF 2025** **BETWEEN** **JOHNSON GACHOKI KARIITHI…………………………... APPLICANT** **AND** **G.N THIONG’O ASSOCIATES….……………………….... RESPONDENT** **RULING** 1. Before the Court is a Notice of Motion application dated 1st December 2025 seeking 2. Stay of execution of ruling dated 21st November 2025 pending hearing and determination of the present application. 3. That the Court be pleased to review/vary or set aside the ruling dated 21st November 2025. 4. The grounds set out in the application among other reasons is that there is an error apparent on the face of the record; in that the Court failed to consider (3) sets of submissions filed by the Applicant herein. 5. That application is challenged by way of a preliminary Objection dated 9th January 2026. The Objection is averring that the Notice of motion dated 1st December 2025 be dismissed for reasons of; - 6. Having been brought under the Civil Procedure rules while the correct statute to be invoked is the Advocates Renumeration Order. 7. That the application offends paragraph 11 (1) and (2) of the Advocates Renumeration Order as the provision provides for how a taxed bill of Cost may be challenged. Thus, the objection is that the application is wholly defective and unsustainable. **Analysis and determination.** 1. The two were disposed of by way of written submissions and I shall deal with the two applications simultaneously, giving preference, as a matter of law, to the preliminary Objection. 2. In the case of ***Mukisa biscuits Manufacturing co. ltd vs West End Distributors Ltd****.* And as affirmed by the supreme Court of Kenya in the case of ***Independent Electoral and Boundaries Commission v Jane Cheperenger & 2 Others,*** the principles applicable for a Preliminary Objection to succeed are well settled. That: - 3. The Objection must be on a pure point of law 4. The Objection must arise from the pleadings or by clear implication from them 5. The Objection proceeds from the assumption that the opposing party’s pleadings are true. 6. The Objection cannot be based on disputed facts or require the Court to receive evidence or exercise discretion. 7. I have considered the principles to be applied in a preliminary Objection, the submissions in support and the opposing submissions. I have also perused the Notice of Motion dated 1st December 2025 which was brought under order 51 rule 1 of the Civil Procedure rules, section 80 of the Civil Procedure Act, order 45 rule 1 and 2 of the Civil Procedure rules and other applicable laws. 8. The Notice of Motion in essence seeks to review the ruling of the taxing officer dated 21st November 2025, for the reason that the Court did not consider the submissions of the Applicant herein. 9. The question before the Court therefore is whether the Civil Procedure rules apply to taxation proceedings or are they exclusively to be brought under the Advocates Remuneration Order Specifically Paragraph 11 of the Remuneration Order. 10. The Notice of Motion as noted above has been brought under order 51 rule 1 of the Civil Procedure rules, Section 80 of the Civil Procedure act, order 45 rule 1 and 2 of the Civil Procedure rules; which in essence seeks review of a ruling on taxation of a bill of cost. 11. We begin from the Advocates Act; at Part IX of the Act, which provides for Renumeration of Advocates. Further, the Advocates renumeration order at paragraph 13 provides for taxation of the bill of costs brought by either the advocate or the client, while paragraph 11 provides for procedure in case of an objection to a decision of the taxing officer. 12. Paragraph 11 of the renumeration order provides **“11. *Objection to decision on taxation and appeal to Court of Appeal*** *(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 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.* *(3) Any person aggrieved by the decision of the judge upon any Objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.* *(4) The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) for the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.”* 1. When it comes to taxation of advocates bill of cost, the main statutes to be considered are indeed the Advocates Act and the Advocates Renumeration Order as the primary statutes. 2. For where Parliament has created a complete statutory procedure for challenging taxation decisions, parties cannot invoke the general review jurisdiction under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules to obtain substantially the same relief. To permit such an approach would be to defeat the special procedures enacted under Paragraph 11 thereof. 3. The Court of Appeal in ***Machira & Co. Advocates v Arthur K. Magugu & Another*** recognized that the Advocates Act and the Advocates (Remuneration) Order establishes the legal framework governing taxation and the challenge of taxation decisions. 4. Similarly, in ***Ahmednasir Abdikadir & Co. Advocates v National Bank of Kenya Ltd (2),*** the Court emphasized that the procedure under Paragraph 11 of the Advocates Remuneration Order is the prescribed mechanism for challenging taxation. 5. I therefore find and hold that taxation proceedings have a designated provision hence the Civil Procedure rules will not apply to the taxation proceedings since the Civil Procedure Rules are rules of general application and a specific statutory regime prevails over general procedural statute. See the case of **George Miyare t/a Atonga Miyare & Associates Advocates v Evans Gor Semelang’o where t**he Court considered whether Order 50 of the Civil Procedure Rules could override Paragraph 11 of the Advocates Remuneration Order. The Court held: *"...the Applicant cannot invoke the Civil Procedure Act and Rules made thereunder to circumvent the procedure provided under the Advocates Act and Remuneration Order..."* 1. Further the Court said, *"...the Advocates Act is the legal regime governing taxation of costs whether party and party or advocate/client costs and is a complete statute in itself on matters of taxation of costs..."* 1. However, a closer look at the Notice of Motion, the Applicant herein avers that he is not challenging the taxation proceedings rather he is challenging the fact that his 3 sets of submissions were not considered. 2. This brings to the fore the matter of Natural justice and fair hearing under article 50 and article 47 of the Constitution. I have perused the proceeding from the taxing officer and find that the taxing officer had directed that the Applicant should file their responses (if any) within 3 days. 3. I have looked through the CTS system, and I have not seen any substantive responses from the Applicant. Thus, the Applicant did not abide by the court’s directions if indeed he had an objection thereto. 4. However, in his submissions he raised an objection. Which in his opinion, if the taxing master would have considered, would probably have reached a different decision. 5. In light of Article 159 (2) (d) that states that “justice will be done without undue regard to procedural technicalities” I will consider the response in the submissions as objections raised. 6. With paragraph 22 above in mind, does invoking natural justice and Fair hearing under Article 50 and 47 of the constitution ousters the provision of paragraph 11? I think not. Although the Applicant has framed the application as one alleging an error apparent on the face of the record and denial of a fair hearing, the effect of the application seeks to impeach and set aside the decision of the taxing officer. Such a challenge fall within the ambit of Paragraph 11 of the Advocates (Remuneration) Order. And thus, the issues of natural justice and fair hearing as raised can be well articulated in the bounds of paragraph 11 of the advocates Renumeration order. 7. It should be however noted that Paragraph 11 is not confined to disputes over quantum alone. It provides in part that *"Should any party* ***object to the decision*** *of the taxing officer..."* (emphasis mine). This to my mind is broad as an objection could be on anything. 8. The Applicant’s case thus should be of such an exception for the court’s review jurisdiction to be invoked. In the present matter the complaint that the taxing officer failed to consider the Applicant's submissions is an objection directed at the process by which the taxing officer reached the impugned decision. Such complaint properly falls within the expression *'object to the decision of the taxing officer'* under Paragraph 11 of the Advocates Remuneration Order. 9. In my view, the Applicant's complaint is not an exceptional case for the reason that the Applicant's grievance is that the taxing officer failed to consider three sets of submissions before rendering the taxation ruling. That complaint concerns how the taxing officer exercised their judicial function during taxation, rather than the jurisdiction of the taxing officer or the legality of the proceedings themselves. 10. Thus, if the Applicant is correct, the consequence would be that the taxing officer reached an erroneous or procedurally flawed decision. Paragraph 11 exists precisely to enable a Judge to review such errors committed during taxation. 11. In my analysis the existence of an allegation of breach of the right to a fair hearing does not, without more, displace the statutory procedure provided under Paragraph 11 where the complaint arises from the conduct of taxation proceedings. Such issues may properly be raised before the Judge hearing the reference. 12. Since the Applicant herein elected to invoke the review jurisdiction under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules instead of the procedure prescribed under Paragraph 11 of the Advocates (Remuneration) Order, this Court lacks jurisdiction to entertain the application in its present form. **Disposition.** 1. The upshot is that the preliminary objection is thus merited and is allowed. 2. The Notice of Motion is therefore incompetent and is subsequently dismissed. Orders accordingly. Right of appeal 28 days. Dated, Signed and delivered online on Team platform this 22nd day of July, 2026. **……………………………** **Hon. R. A. Oganyo, Mrs.** **Judge.** In the presence of; - Court Assistant…. Sana Erastus Mr. Thiong'o for the Applicant Mr. Mwenda for the Respondent.