Joseph Kiaries & Co. Advocates v Mwenda (Miscellaneous Petition E028 of 2024) [2026] KEHC 6647 (KLR) (Constitutional and Human Rights) (18 May 2026) (Ruling)

Joseph Kiaries & Co. Advocates v Mwenda (Miscellaneous Petition E028 of 2024) [2026] KEHC 6647 (KLR) (Constitutional and Human Rights) (18 May 2026) (Ruling) Neutral citation: [2026] KEHC 6647 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Miscellaneous Petition E028 of 2024 RE Aburili, J May 18, 2026 IN THE MATTER OF TAXATION OF COSTS Between Joseph Kiaries & Co. Advocates Advocate and Ann Kananu Mwenda Client Ruling 1.The salient facts of this case are that the advocate Mr. Joseph Njenga Kiarie was employed by the Nairobi City County Public Service Board as the legal advisor with effect from 15th March, 2021 vide a letter of appointment dated 15/3/2021. The advocate, who is the respondent in the application subject of this Ruling was to directly report to the Applicant Governor for allocation of day today duties and responsibilities. He worked on full time basis in job Group R within the Public Service and was entitled to a fixed remuneration and various other benefits including medical insurance scheme, house allowance, commuter allowance, service gratuity and annual leave. 2.Before he was employed by the Nairobi City County Public Service Board, he ran a private law firm and was retained by the applicant/ client herein to represent her in a series of petitions were filed against her while she was serving as Deputy Governor. These cases are being Constitutional Petition Nos. E005, E007, E009, E011, E012, E019 all of 2021. It would appear that the advocate continued representing the applicant in those various petitions after his appointment to serve in the C=Nairobi City County Government. 3.From the letter of appointment dated 15/3/2021, the advocate herein was a salaried employee of the City County Government save that his term was pegged on the tenure of the applicant herein in office and the advocate was paid a monthly salary. 4.According to the applicant, the advocate was compensated for his services rendered to the applicant in the constitutional petitions because as at the time of representing her in those petitions, the advocate was an employee of the City County public Service Board and that therefore the applicant is not personally liable to settle legal fees claimed by the advocate in his Advocate/ client bill of costs filed against the applicant herein. 5.In opposing the advocate’s bill of costs dated 24th June, 2024 and citing section 133 of the County Government Act, the applicant/ client contended that she could not be personally held liable to settle legal fees for services rendered to her in her capacity as a member of the County Government by an employee of the County Public Service Board earning a salary as a staff in the public service. 6.Section 133 of the County Government Act provides that:133.Protection against personal liability(1)No act, matter or thing done or omitted to be done by—(a)any member of the county government or its administration board or committee;(b)any member of the county assembly;(c)any member of staff or other person in the service of the county government; or(d)any person acting under the direction of the county government, shall, if that act, matter or thing was done or omitted in good faith in the execution of a duty or under direction, render that member or person personally liable to any civil liability.(2)A person who is not exempted from liability under subsection (1) and who directs or concurs in the use of funds contrary to existing legal rules or instructions shall be accountable for any loss arising from that use and shall be required to make good the loss even if that person has ceased to hold office. 7.The applicant argued that as an employee of the County Government, the advocate was expected to render services to the County Government and its officials without asking the applicant to settle his fees separately since he was already being compensated by way of a monthly salary as per his letter of employment. 8.These objections to the taxation of the respondent/ advocate’s bill of costs were heard on merit before the taxing master who rendered her ruling under (b) posing the question of whether the applicant advocate having been appointed by the Nairobi City County Public Service Board as a legal advisor, had the capacity to file the bill of costs against the applicant/ client. After analyzing the letter of appointment dated 15th March 2021, the taxing master found that the petitions were filed in January 2021 between 11th -19th hence at the time of the advocate taking instructions, the applicant/client herein was not an employee of the County Government and therefore the advocate became entitled to legal fees up to and until the day that he was appointed the legal advisor of the County. The taxing master therefore proceeded to tax the bill taking into account her above finding, allowing the bill, only from the date when instructions to represent the applicant herein were given, to before he was employed as the legal advisor, which bill ran from item 2 to 12 of the bill of costs. 9.After the taxing master had taxed the bill of costs and arrived at the figure of Kshs 2,180,251, she again posed the question at page 6 paragraph ( c) which she called the third issue for her determination as follows:“(c)had the applicant represented the respondent in her personal capacity or as the Governor Nairobi County and who should pay the costs.” 10.The taxing master then concluded, after reproducing section 133 of the County Governments Act that:“The Respondent was the Deputy Governor nominee, the Deputy Governor as from 15th January 2021 and thereafter the Governor Nairobi County, the matter were filed in court to represent the interest of the County. I am persuaded therefore that the costs awarded hereinabove ought to be pursued through the county.” 11.None of the parties filed any reference pursuant to Paragraph 11 of the Advocates Remuneration Order to challenge the ruling on taxation. What followed was the advocate obtaining a certificate of Taxation dated 26th November, 2024 and the said certificate clearly states that it is in respect of costs against the client. Applicant herein taxed in the sum of Kshs 2,180,251 only. 12.Upon receipt of that certificate of taxation, the applicant/client herein wrote to the Deputy Registrar asking that the certificate of taxation be rectified to accord with the ruling on taxation which at issue number (c) states that the costs ought to be pursued against the County Government. 13.That letter was copied to the respondent advocate who wrote back stating that as far as he was concerned, the ruling could not have applied to the County Government who were not parties to the bill of costs and more so, that the taxing master stated ought and not should in her ruling, after she had already made a finding that the applicant was liable to settle the advocate’s costs only to the extent that the costs covered the period that the advocate acted for the applicant prior to the advocate being employed by the County Public Service Board as Legal Advisor. 14.The advocate noted that since he was retained by the applicant herein prior to being employed as a public officer, and that as the petitions against the applicant were filed in January 2021 prior to the advocate becoming an employee vide letter of appointment dated 15th March, 2021, no such certificate of costs could be issued against the County Government. 15.It appears that the applicant received no response from the Deputy Registrar on the request for correction of the certificate of taxation hence the filing of the Notice of Motion dated 29th January, 2025 supported by an affidavit, seeking to stay execution of the certificate of costs dated 26th November, 2024 and that the Court be pleased to set aside/quash/strike out the said certificate of costs dated 26th November, 2024 and award her costs of the application. 16.The main ground upon which the application is predicated is that the certificate of costs does not accord with the ruling on taxation rendered on 24th September, 2024. 17.According to the applicant, the taxing master had in her taxation ruling found that the costs should be settled by the County Government hence the certificate of taxation should state as much and be issued against the County Government and not against the applicant. 18.I will only highlight the issue of whether the certificate of costs dated 26th November, 2024 as issued by the Deputy Registrar/ taxing master is irregular, unlawful and contrary to the express orders of the taxing master issued on 24th September, 2024 thus warranting its setting aside, quashing or striking out. 19.After framing the issue as above, the applicant went further to pose the question of whether the taxing master, whose duty is purely administrative, can lawfully issue a certificate of taxation that contradicts a clear binding directive of the High Court Judge on the liability and enforcement of taxed costs. The applicant cited various decisions on jurisdiction of courts as espoused in Samuel Macharia v Kenya Commercial Bank Ltd [2012] e KLR, on the principle that a court only exercises jurisdiction conferred on it by the Constitution, the statute or both and that any act done in excess of jurisdiction is a nullity. 20.On the administrative jurisdiction of the Deputy Registrar, reliance was placed on Republic v Deputy Registrar, High Court of Kenya and another Exparte Kipkorir [2021] e KLR where the Court is said to have emphasized that the Deputy Registrar, being an administrative officer, lacks the judicial authority to review, vary or reinterpret a judge’s orders, as such actions encroach upon the judicial function reserved for the Court. 21.Further reliance was placed on Musyoka Wambua advocates v Kidero &Co Advocates [2021] eKLR where the court is said to have held that a certificate of taxation that is inconsistent with the judgment or ruling from which it emanates is invalid and liable to be set aside as it fails to reflect the court’s true intent. 22.The applicant’s counsel therefore submitted that from the above judicial decisions, a certificate of taxation must strictly align with and give effect to the decree or ruling from which it flows and that any departure therefrom, renders the certificate fundamentally defective. The applicant’s counsel urged that the ruling of the taxing master was clear that she was persuaded that the costs taxed ought to be pursued through the County hence the certificate of costs could only issue against the county Government and not the applicant. 23.The applicant argues that the Deputy Registrar purported to issue a certificate of taxation impugned herein, in brazen defiance of the court’s pronouncement thereby unilaterally altering the enforcement path which is impermissible, unlawful and wholly without jurisdiction. That despite the applicant’s counsel promptly seeking administrative correction of the said certificate of taxation the respondent advocate had commenced execution process against the applicant by obtaining warrants of attachment against her property, thereby prejudicing her. 24.The applicant prayed for the orders sought and costs of her application. 25.The respondent/ advocate opposed the application and filed a replying affidavit sworn on 4th February, 2025 and written submissions dated 20th January, 2025, giving the background of the matter from the time of retention by the applicant/ client herein to the filing of the bill of costs and taxation ruling. Since the depositions by the advocate are highlighted in the written submissions, I will combine the arguments and contentions in this analysis. 26.The advocate framed two main issues for determination namely, whether the Deputy Registrar erred in law by issuing the certificate of taxation against the applicant client and secondly, whether the decision of the taxing master extinguishes the applicant’s primary, contractual liability to the Respondent or whether it merely points to her secondary right of indemnity under section 133 of the County Government Act? 27.On the first issue, the advocate deposes and contends that the Deputy Registrar lacks jurisdiction to review or vary or reinterpret a judge’s orders and that her role is administrative not judicial, only recording judicial findings not to create a new one. 28.According to the advocate, had the taxing master issued a certificate of taxation against the County Government, she would have reinterpreted the ruling by varying the parties to the taxation proceedings and that therefore she could not encroach on the judicial function by making a finding on liability against a new party, which invitation she refused, in adherence to her administrative mandate. Counsel urges that the impugned certificate agrees with and is consistent with the ruling of the taxing master. 29.On the second issue, counsel contends that the foundation of his claim is the retainer by the applicant herein for legal services in the named petitions and that the advocate has no contract with the County Government hence he could not have filed a bill of costs against the County Government or expect a taxation against the County Government which was not a party to the taxation proceedings. 30.According to the advocate, the observation by the taxing master that the award ought to be against the county was a statutory indemnity clause which is a reimbursement mechanism that does not extinguish the debt owed by the applicant herein to the advocate for legal services rendered to her. He contends that the applicant was twisting the taxing master’s obiter into a shield to evade settling the costs as taxed, by pushing the advocate to go for a non-party with whom he has no enforceable contract, which would, according to the advocate, offend the right to a fair hearing espoused in Article 50(1) of the Constitution. Analysis and determination 31.I have carefully considered the application and given the factual background to the matter herein as well as the respective parties’ rival positions and the issue for determination, with ancillary questions to be answered is whether the application to set aside, varying or quashing the certificate of costs dated 26th November, 2024 is merited. 32.As I resolve this main issue, it is important to note that the County Government was not a party to the taxation proceedings and neither was it enjoined to the said proceedings at any stage as a third party by the applicant herein and therefore the question is whether the taxing master could have issued a certificate of taxation against and to be enforced against an entity which is not a party to the proceedings and the ruling on taxation, by making a statement in the taxing master’s ruling that the costs ought to be pursued against the county, yet in her first part of the taxation ruling, she clearly stated that the costs as already taxed were taxed against the client who is the party against whom the advocate sought his costs to be taxed. 33.At the heart of this issue is a simple but fundamental principle of justice that no person or entity should be condemned without being heard. The County Government for whom the applicant was initially the Deputy Governor nominated by the later impeached Governor, after which impeachment the applicant became Governor, was never a party to the taxation proceedings. 34.The Taxing master, before taxing the bill of costs drawn against the applicant, first resolved the issue of whether the respondent advocate was at the time that he was retained serving as an employee of the County Government and her answer was in the negative. None of the parties have complained or filed a reference challenging the finding upon which the taxing master proceeded to tax the bill against the applicant, limiting the costs to the period that the advocate was not yet an employee of the county Government. 35.I reiterate that the County Government was never a party to the taxation proceedings and was never joined at any stage. It did not participate, and it was never given an opportunity to respond to the claim for costs which were sought against the applicant herein. In those circumstances, it would be procedurally improper and legally untenable for a certificate of taxation to issue against a non-party to the taxation proceedings. Such an order would offend the party’s right not to be condemned unheard. 36.It is equally true as highlighted by both parties hereto that a taxing master’s role is limited. The taxing master does not determine liability for costs; that responsibility lies with the Court that heard the matter or in the case of advocate client costs, where there is a dispute as to retainer, then the matter would be determined by the Judge before letting the taxing master proceed to tax the bill. 37.In the instant case, there was a dispute as to whether the advocate was retained by the applicant as an independent contractor or that the advocate represented the applicant in his capacity as an employee of the county government and that issue was resolved by the taxing master in the taxation ruling. Although that issue could have fallen for determination by the Judge, nonetheless, none of the parties have raised issue with that finding and this court would hesitate to resuscitate a dispute already resolved. 38.However, there is a contradiction in the last part of the ruling by the taxing master and that inconsistency is what has given rise to the controversy herein. 39.The Supreme Court in the case of Fredrick Otieno Outa v Jared Otieno Odoto & 3 Others SC Petition No 6 of 2014; [2023] KESC 75 (KLR) highlighted the following principles to be considered in an application for setting aside a taxation decision:“(11)A certificate of taxation will be set aside, and a single Judge can only interfere with the taxing officer’s decision on taxation if;a.there is an error of principle committed by the taxing officer;b.the fee awarded is shown to be manifestly excessive or is so high as to confine access to the court to the wealthy;(and I may add, conversely, if the award is so manifestly deficient as to amount to an injustice to one party).c.the court is satisfied that the successful litigant is entitled to fair reimbursement for the costs he has incurred, (and I may add, the award must not be regarded as a punishment of the defeated party but as a recompense to the successful party for the expenses to which he had been subjected by the other party); andd.the award proposed is so far as practicable, consistent with previous awards in similar cases.To these general principles, I may add that:i.There is no mathematical formula to be used by the taxing officer to arrive at a precise figure because each case must be considered and decided on its own peculiar circumstances,ii.Although the taxing officer exercises unfettered judicial discretion in matters of taxation that discretion must be exercised judicially, not whimsically,iii.The single Judge will normally not interfere with the decision of the taxing officer merely because the Judge believes he would have awarded a different figure had he been in the taxing officer’s shoes.” 40.As above stated, the principles that guide this Court in an application for setting aside a certificate of taxation are now settled and since the challenge is not on the figures arrived at by the taxing master in a reference, it follows that with the inconsistency noted in the ruling after the order was made in the taxing of the bill against the applicant/ client herein, the question is whether the taxing master could again in the same ruling, attempt to review her own finding and pronounce that the costs awarded ought to be pursued through the County. 41.The applicant wrote to the taxing master to correct the certificate of costs. In my humble view, the taxing master could not correct the certificate of costs to reflect the County Government as a party against whom the costs were executable for reasons that the County Government was not a party to the taxation proceedings and if she were to do otherwise, she would be introducing a new party to proceedings after taxing the bill of costs, against a totally different party without giving the new party an opportunity to be heard. 42.this would render the new or corrected certificate of costs difficult and impracticable to enforce against a non-party. This is so, considering that there is no evidence that the County Government ever instructed the advocate to represent the applicant to represent her in those cases before he was employed as a legal advisor. 43.Both parties having conceded that the role of the taxing master is not to determine liability but to tax the bill as between the parties before her, and the taxing master having taxed the bill between the parties before her, she could not by way of an obiter decision, attempt to review that taxation by holding that the costs ought to be pursued through the County, which later was not a party to the taxation proceedings. 44.It is for that reason that I find part of the decision of the taxing master at paragraph (c) on issue 3 to have been made per incuriam and this Court is entitled and obliged to intervene to correct that inconsistency. This concept of per incuriam was examined in Hyder Consulting (UK) Ltd. v. State of Orissa (2015) 2 SCC 189 where it was held:“ 46.Before I consider the correctness of the aforementioned decisions, it would be necessary to elaborate upon the concept of “per incuriam”. The Latin expression “per incuriam” literally means “through inadvertence”. A decision can be said to be given per incuriam when the court of record has acted in ignorance of any previous decision of its own, or a subordinate court has acted in ignorance of a decision of the court of record. As regards the judgments of this Court rendered per incuriam, it cannot be said that this Court has “declared the law” on a given subject-matter, if the relevant law was not duly considered by this Court in its decision. In this regard, I refer to State of U.P. v. Synthetics and Chemicals Ltd.[8], wherein R.M. Sahai, J. in his concurring opinion stated as follows: (SCC p. 162, para 40) “40. ‘Incuria’ literally means ‘carelessness’. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The ‘quotable in law’ is avoided and ignored if it is rendered, ‘in ignoratium of a statute or other binding authority’.” 45.It is important to note that this is not about the propriety or knowledge of the taxing master who rendered the taxation ruling, but that paragraph (c) of the taxation ruling as it is, is unfit for enforcement against a non-party to the taxation proceedings. 46.Consequently, I find that the certificate of costs as drawn was proper as it identifies the applicant/ client herein as the proper party against whom the costs were sought and taxed. I decline to interfere with that certificate of costs. I however set aside part (c) of the taxation ruling rendered on 24th September, 2024 assigning a non-party liability to settle the taxed costs. The erroneous part of that ruling is hereby quashed. 47.That said, the application by the applicant/ client fails and is dismissed to the extent that I have not interfered with the certificate of costs as drawn, which is properly drawn against the client. 48.As the issue giving rise to these proceedings was occasioned purely by the taxing master erroneously contradicting herself in the taxation ruling as to who should settle the advocate client costs taxed by her, I order that each party bear their own costs of the application. The advocate is at liberty, absence settlement, to apply under section 51 of the Advocates Act for Judgment on taxed costs. 49.Mention before the Deputy Registrar on 24th June, 2026 to confirm status of settlement of the taxed costs. 50.I so order. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 18TH DAY OF MAY, 2026R.E. ABURILIJUDGE