https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7681

Ndoro (Administrator to the Estate of the Late Arthur Ng’ang Njuguna Ndoro) v Ndubi t/a Robert Ndubi & Co. Advocates (Family Miscellaneous Application E046 of 2023) [2026] KEHC 7681 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KEHC 7681 (KLR) Republic of Kenya In the High Court at Nakuru Family Miscellaneous Application E046 of 2023 PN Gichohi, J June 3, 2026 Between Joyce Mbarire Ndoro (Administrator to the Estate of the Late Arthur Ng’ang Njuguna Ndoro) Applicant and Robert H. Ndubi T/A Robert Ndubi & Co. Advocates Respondent (Being a Reference from the taxation of the decision of the Taxing Master in High Court Misc. Application No. 18 of 2019 delivered and dated 25/7/2023.) Ruling 1.By a Chamber Summons dated 8th August 2023 brought under Rule 11 (2) of the Advocates (Remuneration) Order, Section 1A, 1B and 3A of the Civil Procedure Act and Article 159 of the Constitution of Kenya 2010, the Applicant seeks the following orders: -1.That this honorable Court be pleased to set aside the Taxing Master’s decision delivered on 25th July 2023.2.That this honorable Court be pleased to re-asses the fees due on item 1 of the respondent’s bill of costs and make a finding on the same.3.That in the alternative and without prejudice to the foregoing, this honorable Court be pleased to remit item 1 to a different taxing master in respect of the respondent’s bill of costs dated 30th September 2019 for review and reconsideration with directions on the taxation.4.That the costs of this application be provided for. 2.The grounds on the face of the application can be condensed as follows: -a.The taxing master misdirected herself and acted contrary to principles of taxation.b.The taxing master misdirected herself when she held that she arrived at the value of the subject matter by looking at the pleadings, despite the fact that the pleadings filed had different figures, thus a deference in the purported subject matter.c.The taxing master misdirected herself and erroneously used her discretion to arrive at a figure of Kshs. 348,916,488/= as the value of the estate without considering the net value of the estate, thus disfranchising the Estate and its beneficiaries.d.The taxing master’s decision to tax item 1 at the amount of Kshs. 3,793.746.12 was erroneous and cannot be justified.e.The use of discretion of the taxing master in taxing the Respondent’s bill of costs dated 30th September 2019 was grossly unjust and highly prejudiced and disfranchised the estate/applicants herein.f.The taxing master had previously rendered her ruling on 3rd August 2021, where she valued the estate at Kshs. 400,000,000/= and proceeded to tax item 1 at Kshs. 4,049,000/=.g.The applicant preferred a reference of the taxing master's ruling dated 3rd August 2021 through Nakuru High Court Miscellaneous No. 29 of 2021.h.The ruling was rendered by J. Ngugi on 19th October 2022 on the reference and held that the value of the estate was not ascertainable, hence remitted the bill back to the taxing master with directions to re-assess fees due on item 1 of the Respondent’s bill of costs.i.On 25th July 2023, the taxing master rendered her ruling on item 1 and taxed it at Kshs. 3,793,746.12/= after stating that the value of the estate was Kshs. 400,000,000/= before deducting the estate's liabilities.j.Despite the ruling by J. Ngugi, and the fact that the taxing master still used Kshs. 400,000,000/= despite the fact that the estate had not been valued.k.In the circus stances, it is just and fair that the application herein be allowed as prayed. 3.That application is supported by the Affidavit sworn by Joyce Mbarire Ndoro, sworn on even date. Emphasising her application, she stated that the Respondent had represented the estate in petitioning letters of administration. However, she differed with him and requested him to hand over her files to the new advocate, but he declined, saying that she would hold them until she paid him the entire legal fees yet she had cleared it as per the agreement. 4.As a result of that disagreement, the Respondent filed the Bill of Costs on 30th September, 2019, which was canvased and a ruling delivered by the taxing master. Dissatisfied, she filed a Reference to the High Court, and a Ruling was delivered on the same, and the bill remitted to the taxing master for re-taxation. Dissatisfied with the re-taxation contained in the ruling dated 25th July 2023, she filed this reference. 5.Emphasising the chronological events in the matter, she urged this court to allow this reference. Respondent’s Response 6.The Respondent opposed the application by filing a Replying Affidavit sworn by Robert H. Ndubi on 27th November, 2024, through the firm of Magatta & Njogu Advocates. 7.Terming the application as an abuse of the court process, he deponed that it is the second time that the Applicant herein is filing a reference thereof after the first one was allowed as shown in her Supporting Affidavit, hence evidence of bad faith on her part, seemingly on a mission of engaging him in endless litigation. 8.It is his position that the figure of Kshs. 400,000,000/= allegedly used by the taxing master to assess item 1 of the impugned Advocate - Client bill was based on the cross petition, which was one of the pleadings filed in the main succession cause. 9.He stated that the taxing master neither committed any grave mistake nor erroneously exercised her discretion as alleged. 10.He argued that there is no legal requirement that an advocate must wait for an estate to be distributed before they can file an advocate -client bill and therefore terms it misleading for the Applicant to allege that the value of the estate herein can only be ascertained after the succession matter in question has been finalised. 11.His view is that it was not within the taxing master’s jurisdiction to make inquiries whether any amount were paid prior to the taxation of the impugned Advocate - Client bill, but to strictly apply the provisions of the Advocates Remuneration Order (ARO) with respect to each item while taxing the said bill and that any outstanding issue would always be addressed at the point of enforcement of a decree that arises from an issued certificate of costs. 12.He maintained that he has never disputed that a deposit of Kshs. 100,000/= was paid to his law firm. He therefore stated that no cogent reasons have been advanced to necessitate this court to set aside and/or interfere with the ruling on taxation delivered on the 25th of July 2023. Applicant’s Submissions dated 6th December 2024 13.These submissions are basically an emphasis of her application. Relying on the Court of Appeal decision in Joreth Limited v Kigano & Associates [2002] eKLR, she submitted that there being two different values, the true value of the estate is shrouded in uncertainty. 14.It was submitted that the succession cause had not yet been concluded and the Administrator had not yet returned the net value, and therefore, it is evident that the value of the subject matter was unascertainable; hence, at that juncture, it was incumbent upon the taxing master to exercise her discretion on instructions fees as provided for by the Advocates Remuneration Order. However, instead of perusing the main succession file, the taxing master opted to rely on the sum proposed by the Respondent despite the fact that there was no evidence to back the said figure. 15.She therefore submitted that the decisions by the taxing officer were arrived at by using the wrong principle, blatantly ignored the directions issued by Prof Ngugi J in the ruling dated 19th October 2022, and hence abused her discretion when she failed to consider that the value of the subject matter was not ascertainable. 16.Consequently, she urged this court to set aside the taxing officer’s decision and remit the matter to a different taxing master in accordance with the decision in Joreth Limited (supra) as regards Item 1 of the Bill of Costs dated 30th September, 2019. Respondent’s Submissions dated 7th February, 2025 17.He framed one broad item being whether the application herein is merited. Rehashing the Ruling by Prof. Ngugi J remitting the bill for retaxation, the Respondent submitted that the taxing master indeed retaxed Item 1 by considering pleadings that had been filed by the protester in the matter and rendered its ruling on 25th July 2023. 18.While acknowledging the discretionary power of the taxing officer, he cited the case of Kipkorir, Tito & Kiara Advocates vs Deposit Protection Fund Board [2025] eKLR that the court will not lightly interfere with an award of quantum by the taxing master unless there is an error in principle or discretion exercised improperly resulting in a miscarriage of justice. 19.In this case, he submitted that the Applicant acknowledged that indeed the taxing officer retaxed item 1 of the impugned ruling based on the values stated in the protestor’s affidavit. 20.The Respondent submitted that the Appellant’s grievance that the taxing master took the protestor’s figure as “gospel truth” is unknown in law and hence cannot hold. He argued that the role of the taxing master is to determine the value of the subject matter from the pleadings, but there is no indication from the caselaw cited that such determinable value ought to be “the gospel truth.” 21.Further, he submitted that the Applicant failed to demonstrate that the taxing master failed to adhere to the learned Judge’s earlier directions and argued that the taxing master did exactly what the said directions stated regarding the affidavit as one of the materials for consideration, making her determination. 22.Further, he submitted that the Applicant failed to demonstrate the threshold for granting the orders sought. He therefore urged the court to dismiss this application with costs. Determination 23.After considering the material before the court, the broad issue is whether this court should grant the orders sought by the Applicant. 24.The value of the subject matter was not ascertainable, contrary to the taxing master’s finding in the ruling dated 3rd August, 2021, while taking the value of the subject matter as Kshs. 400,000,000. 25.Indeed, Prof. Ngugi, J (as he then was) had this to say while remitting the bill of costs back to the taxing master for retaxation on Item 1 only: -“What emerges from the learned Taxing Master’s ruling is that, contrary to the Advocate's contention, she did not, in fact, peruse the two succession matters in order to ascertain the true value of the subject matter. Instead, as explicitly stated in her Ruling, she relied on the Kshs. 400 Million value, which was in the Affidavit filed in support of the Petition for Letters of Administration. The problem with that position is, as the Applicant argues, the figure may not always be accurate. It is not only an estimate by the Petitioner, but is one that awaits testing through the succession proceedings to determine if any liabilities of the estate exist.To this extent, the Applicant is correct, only to the extent that the value of the subject matter as determined by the Taxing Master might not be the correct one, absent actual findings by the Taxing Master arrived at after perusing the entirety of the Succession Causes which were litigated. The correct course here, then, is to remit this matter back to the taxing master to make a determination of the value of the subject matter after considering the entirety of the Succession Causes which were litigated.” 26.From the ruling delivered on 25th July, 2023, which is the subject of this application, there is no full compliance with the above directions given by the High Court. 27.For that reason: -1.The Bill is now remitted for re- taxation on Item 1 of the Bill of Costs before a different Taxiing Master.2.Each party to bear its own costs. DATED , SIGNED AND DELIVERED AT NAKURU THIS 3RD DAY OF JUNE , 2026.PATRICIA GICHOHIJUDGEIn the presence of:N/A for ApplicantN/A for the RespondentErickson, Court Assistant