https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3481

 ***REPUBLIC OF KENYA*** ***IN THE ENVIRONMENT & LAND COURT AT NAROK*** ***ELC MISC APPL. NO. E016 OF 2023*** ***KEMBOY LAW ADVOCATES ………………ADVOCATE/RESPONDENT*** ***VERSUS*** ***NAROK COUNTY GOVERNMENT……CLIENT/APPLICANT COUNTY*** ***ARISING FROM*** ***REPUBLIC OF KENYA*** ***IN THE ENVIRONMENT & LAND COURT AT NAROK*** ***ELC CASE NO. 5 OF 2021*** ***REPUBLIC …………………………………………………………APPLICANT*** ***VERSUS*** ***COUNTY COUNCIL OF NAROK …………………..….1ST RESPONDENT*** ***PERMANENT SECRETARY, MINISTRY OF LOCAL*** ***GOVERNMENT …………………….........................2ND RESPONDENT*** ***DISTRICT LAND REGISTRAR, NAROK*** ***DISTRICT ……………………………………….………. 3RD RESPONDENT*** ***RULING*** 1. This is a Reference brought by the Client/Applicant herein by way of Chamber Summons dated ***25th February 2025***, under Paragraph 11(2) of the ***Advocates (Remuneration) Order,*** which challenges the taxation of the Advocate Client Bill of Costs dated ***4th October 2023,*** by the Advocate/Respondent, ***Kemboy Law Advocates.*** The impugned taxation Ruling was delivered on ***19th February 2025,*** by the Taxing master, ***Hon. Daniel Ngayo***, who assessed the ***Bill of Costs*** at Kenya Shillings Seventeen Million, Nine Hundred and Sixty-Four Thousand, One Hundred and Fifty-Seven and Eighty Cents (***Kshs. 17, 964, 157.80/=****)* with instruction fees at ***Kshs. 10,000,0000/=.*** 2. The said taxation arose from legal services rendered in ***Narok ELC No. 5 of 2021,*** formerly ***Misc. Civil Application No. 30 of 2003***,wherein the Advocate/ Respondent represented the Client/Applicant in a dispute between ***Wildlife Lodges Limited*** and the Client. Dissatisfied with the said taxation Ruling, the Client/Applicant seeks to ***set aside*** the entire ruling and have the Bill of Costs ***re-taxed*** before a different taxing officer. 3. The jurisdiction of this Court in a Reference of this nature is well settled. ***Under Paragraph 11*** of the ***Advocates (Remuneration) Order***, the Court may interfere with a taxation where it is demonstrated that the ***taxing officer erred in principle*** or that the award is manifestly excessive or inadequate. 4. This position has been consistently affirmed in various decided cases such as ***Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd & Others [1972] EA 162*** *and* ***First American Bank of Kenya v Shah & Others [2002] 1 EA 64.*** 5. This Chamber Summons Application is dated ***25th February 2025***, brought by the Client/Applicant under ***Paragraph 11(2)*** of the ***Advocates (Remuneration) Order,*** challenging the decision of the Taxing Officer, which was delivered on ***19th February 2025***. 6. In the said Ruling, the Advocate/Respondent’s ***Advocate–Client Bill of Costs*** dated ***4th October 2023*** was taxed at ***Kshs. 17,964,157.80/=***, with instruction fees being assessed ***at Kshs. 10,000,000/=***. The Client/Applicant seeks to have the said Ruling ***set aside*** in its entirety and the ***Bill of Costs*** taxed afresh before a different taxing officer. The Client/Applicant also prays for costs of the Reference to be awarded to it. 7. The application is grounded on the contention that the ***Taxing Officer*** ***erred both in law*** and ***in principle*** in the manner in which he exercised his discretion. The Client/ Applicant argues that the provisions of ***Schedule 6*** of the ***Advocates Remuneration Order*** were misapplied, resulting in an award that is ***manifestly excessive*** and ***unjustified in the*** circumstances. 8. In particular, the Client/ Applicant challenges the instruction fees awarded, asserting that the underlying matter was neither complex nor novel so as to warrant such a high figure. It is further contended that several items in the ***Bill of Costs***, including those relating to ***service and attendances,*** were improperly allowed at rates exceeding those prescribed under the ***Advocates Remuneration Order***. 9. Further, the Client/ Applicant faults the Taxing Officer for increasing the taxed costs ***by 50%,*** arguing that such an increment was ***unwarranted*** and contrary to the law. Overall, the Client/ Applicant maintains that the taxation failed to adhere to established principles, and risks occasioning injustice, particularly given the public nature of the funds involved. 10. In response, the Advocate/Respondent, through the Replying Affidavit sworn on ***31st October 2025,*** by ***Julius K. Kemboy***, opposes the instant application, and urges the Court to uphold the taxation Ruling as delivered by the taxing master. The Advocate/ Respondent characterizes the Reference as ***frivolous, vexatious, and an abuse*** of the court process, contending that it is merely an attempt by the Client/ Applicant to evade its contractual obligation to pay legal fees. 11. The Advocate/ Respondent defends the ***instruction fees*** awarded, asserting that the ***Taxing Officer properly exercised*** his discretion after considering all relevant factors, including the complexity of the matter, the time and labour expended, the importance of the issues involved, and the interests of the parties. Further, that the underlying matter, namely ***Narok ELC No. 5 of 2021,*** formerly ***Misc. Civil Application No. 30 of 2003***, was complex and protracted, having been handled over a period of approximately five years, and therefore justified the instruction fees awarded. 12. The Advocate/ Respondent further avers that the ***Taxing Officer*** correctly applied ***Schedule 6*** of the ***Advocates Remuneration Order***, particularly in circumstances where the value of the subject matter was not readily ascertainable from the pleadings, thereby necessitating the exercise of discretion. That the objections raised by the Client/ Applicant regarding ***service and attendance charges*** are rebutted, with the Advocate/Respondent explaining that the amounts allowed were consistent with the provisions of the ***Advocates Remuneration Order,*** especially when factors such as distance and the nature of physical court attendances are taken into account. 13. With regard to the ***50% increase*** in the taxed costs, the Advocate/ Respondent maintains that such an increment is expressly provided for under ***Part B*** of ***Schedule 6*** of the ***Advocates Remuneration Order*** in respect of ***Advocate–Client Bills of Costs***. Further, that this issue ***was not*** raised before the ***Taxing Officer*** and cannot properly be introduced at the Reference stage. The Advocate/ Respondent emphasizes that all items in the ***Bill of Costs*** were duly supported by documentation and were taxed on merit. 14. In conclusion, the Advocates/Respondent asserts that no error of principle or misdirection has been demonstrated to warrant interference with the Taxing Officer’s decision. The Court is therefore urged to dismiss the instant Reference with costs, and uphold the taxation as carried out. 15. The Reference was canvassed by way of written submissions, wherein the Client/ Applicant filed its submissions through Maina ***Ngaruiya Advocates*** ***& Co Advocates***, whereas the Advocate/ Respondent filed its submissions through ***Kemboy Law Advocates***. 16. The Client/Applicant’s written submissions in support of the Chamber Summons Application are dated ***23rd January 2026***, wherein the Client/Applicant challenges the taxation of the Advocate/Respondent’s ***Advocate–Client Bill of Costs***. The Client/Applicant framed the central issue for determination as; whether the ***Taxing Officer erred in law and in principle in taxing the Respondent’s Bill of Costs.*** 17. The Client/ Applicant sets out the legal framework governing References from taxation under ***Paragraph 11(1)*** of the ***Advocates Remuneration Order,*** and emphasizes that this Court has jurisdiction to interfere where the Taxing Officer discretion, where he has acted on a wrong principle or where the award is manifestly excessive. 18. In support of this position, reliance was placed in the case of ***Bank of Uganda v Sudhir Ruparelia & Another (Taxation Reference No. 1 of 2023) [2023] UGSC 12*,** where the Supreme Court of Uganda reiterated that a Judge will only interfere with taxation where *there is an error of principle or where the award is so high or so low as to amount to* *an injustice.* 19. The Client/ Applicant further relied on the case of ***Bank of Uganda v Banco Arabe Espanol Civil Application No. 23 of 1999****,* where the court outlined the limited circumstances under which a court may interfere with a taxing officer’s discretion. 20. Further reliance was placed on the case of ***Keziah Gathoni Supeyo v Yano t/a Yano & Co. Advocates [2019] eKLR,*** which restates the classic principles in ***Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd & Others No. 3 [1972] EA 162.*** These principles include; costs should fairly compensate a successful party, should not be so high as to hinder access to justice, and must be awarded consistently, with the taxing officer exercising discretion judiciously and not whimsically. The Client/ Applicant submitted that these principles were not adhered to in the present taxation. 21. On the issue of instruction fees, the Client/ Applicant submitted that the Taxing Officer misdirected herself by awarding an excessive and unjustified sum. The Client/Applicant relied on ***Joreth Limited v Kigano & Associates [2002] 1 EA 92,*** where the Court of Appeal held that the value of the subject matter should be derived from the pleadings, judgment, or settlement, and where it is not ascertainable, the taxing officer must exercise discretion judiciously, taking into account relevant factors such as the nature and importance of the matter, the interests of the parties, and the general conduct of the proceedings. The Client/ Applicant argued that although the ***Taxing Officer*** acknowledged these principles, but failed to apply them properly, and instead arrived at an exaggerated figure. 22. The Client/ Applicant further relied on the case of ***Kyalo Mbobu t/a Kyalo & Associates Advocates v Jacob Juma [2015] eKLR****,* where the court emphasized that a taxing officer must specifically demonstrate the factors considered in enhancing instruction fees, including the care and labour involved; the nature and importance of the matter; the value of the subject matter, and the complexity or novelty of the issues. 23. Similarly, in the case *of* ***Ramesh Naran Patel v Attorney General & Another [2012] eKLR,***the court held that these factors must be broken down with clarity and specificity. The Client/ Applicant argue that in the present case, the Taxing Officer merely generalized these factors without providing a cogent and particularized justification. 24. The Client/Applicant also relied heavily on the case of ***Republic v Minister for Agriculture & 2 Others Ex parte Samuel Muchiri W’Njuguna & 6 Others [2006] eKLR****,* where the court underscored that the exercise of discretion in taxation must be supported by detailed reasoning, including the level of responsibility, novelty, time spent, and volume of documentation involved. It is submitted that the Taxing Officer failed to meet this threshold, thereby rendering the award arbitrary and unjustified. 25. In addition to ***instruction fees,*** the Client/Applicant challenged ***specific items*** in the ***Bill of Costs***, and argued that the ***Taxing Officer*** erred in allowing ***service charges*** beyond the prescribed limit under the ***Advocates Remuneration Order***, particularly for items No. 13, 33, 37, 48, 53 and 63 where service is capped at ***Kshs. 1,400/=***. Further, that the amounts allowed for attendances were excessive and contrary to ***Schedule 6A (7)*** of the ***Advocates Remuneration Order***. 26. On the issue of the ***50% increase of costs***, the Client/ Applicant submitted that the ***Taxing Officer*** fundamentally misapprehended the law, and that the increase under ***Part B of Schedule 6*** applies only where ***Party-and-Party Costs*** have already been taxed. 27. In support of this argument, the Client/ Applicant relied on the case of ***Nyangito & Co. Advocates v Doinyo Lessos Creameries Ltd [2014] eKLR,*** where the court held that the ***50% increment*** is applicable only after ***Party-and-Party Costs*** have been determined. Further reliance was placed in the case of ***Tom Ojienda & Associates Advocates v County Government of Narok (Misc. Application No. E608 of 2019) [2020] eKLR,*** where the court held that a taxing officer errs in principle by adding ***50% directly*** to an ***Advocate–Client Bill of Costs,*** without first determining ***Party-and-Party costs.*** 28. In conclusion, the Client/ Applicant submitted that the Taxing Officer departed from well-established principles of taxation, awarded excessive and unjustified sums, and misapplied the law regarding the ***50% increment***. It urged the court to find that the taxation was erroneous in law and principle, set aside the taxing maser’s ruling of ***19th February 2025,*** and either reassess the Bill of Costs or remit it for re-taxation before a different taxing officer. 29. The Advocate/Respondent opposed the Client/Applicant’s Chamber Summons Reference which challenges the Taxation Ruling delivered on ***19th February 2025*** by the taxing master, in which the ***Advocate–Client Bill of Costs*** dated ***4th October 2023,*** was taxed at ***Kshs. 17,964,157.80***. Though the Client/Applicant contended that the ***Taxing Officer*** misapplied ***Schedule 6*** of the ***Advocates (Remuneration***) ***Order,*** awarded excessive instruction fees, and improperly increased the taxed amount by 50%, the Advocate/ Respondent maintained that the ***Taxing Officer*** acted within the law, exercised proper ***judicial discretion***, and ***correctly applied*** established principles governing taxation of costs. 30. The Advocate/Respondent in its Replying Affidavit in response to the Client/Applicant’s Chamber Summons Application dated ***31st October 2025*,** urged this court that the taxing officer considered the provisions of Schedule 6 of the Advocate Remuneration Order taking into consideration the complexity of the matter, the time it has taken, interest of the parties and the care and labour required. The Advocate/Respondent maintains that the taxing officer correctly applied the principles of taxation as provided under Schedule 6 of the Advocates Remuneration Order. 31. The Advocate/ Respondent relied on the case of ***Kenya Airports Authority vs Otieno Ragot and Company Advocates (Petition E011 of 2023) [2024] KESC 44 (KLR) (2nd August 2024) (Judgment)***where the Supreme Court held affirmed that where the value of the subject matter cannot be determined, the taxing officer is entitled to exercise discretion guided by the factors set out in ***Schedule 6.*** 32. Further, the Advocate/Client insisted that the Advocates Remuneration Order sets out the minimum sum an Advocate is allowed to charge s instruction fees for work done; that the Taxing Officer rightfully had the unlimited discretion to assess such instruction fees as he considered just and that the taxing officer cannot be faulted for applying his discretion in accordance with the Advocates Remuneration Order. 33. The Advocate/ Respondent disputed the Client/Applicant’s claim that service of particular items is capped at ***Ksh. 1400*** under the ***Advocates Remuneration Order*** and stated that the ***Ksh. 1400*** applies only within a limited geographical radius, and additional charges are permissible depending on distance, as provided under ***Schedule 6.*** Schedule 6(9) of the Advocates Remuneration Order provides that “*service within three kilometers of the High Court or district registry of the High Court (ELC) is Ksh. 1400*” and (b) “*every kilometer over three, such amount as is reasonable, not exceeding per kilometer*.” 34. On the issue of raising the bill ***by 50%,*** the Advocate/Respondent equated this court’s jurisdiction to that of an appellate jurisdiction and that this court cannot determine that issue that is raised for the first time in a reference given that the same was not raised before the taxing master. 35. Further that at ***Part B of Schedule 6*** of the ***Advocates Remuneration Order***, it is provided that in the case between an Advocate and a Client, the minimum fees set out in part of the same schedule shall be increased by 50% in support of the taxing officer’s decision to increase the instruction fees by 50%. 36. Reliance was placed in the case of ***Kinyua Munyao Co. Advocates vs Kenya Ports Authority Oensin Scheme 8 others 2017 KEELRC 498 (KLR)*** and ***Dennis KN Magare another vs Armajit Singh Gahir & 5 others 2021 KEHC 12931 (KLR)*** where the courts held that a taxing officer should tax the ***Advocate/ Client bill of costs*** as presented to him by the advocate, and increase the taxed amount as required by ***Schedule 6 Part B*** irrespective of whether ***Party-and-Party Costs*** have been taxed. 37. The same position was reiterated in the case ***of National Bank of Kenya vs Rachuonyo Advocates (2021)* eKLR** where Hon. Justice F. Tuiyot held that the process of taxing an Advocate’s fees is by applying fees prescribed in Schedule 6 (A) and then increasing it by 50%. 38. In ***Havi & Company Advocates vs. Purma Holdings Limited & 2 others (Miscellaneous Civil Cause No. E032 of 2023) [2024] KEHC 3690 (KLR) (Anti-Corruption and Economic Crimes) (18 April 2024) (Ruling*)**, the court agreed that the instruction fees ought to have been increased by 50% owing to the complexity of issues in that suit. 39. The Advocate/Respondent submitted that ***Paragraph 11*** sets out a strict procedural framework requiring a party aggrieved by taxation to first file ***a notice of objection*** within ***fourteen(14) days***, await reasons from the Taxing Officer, and thereafter file a Reference within fourteen days. Failure to comply with this procedure is said to be fatal to jurisdiction. 40. The Advocate/Respondent further submitted that in the present case, the Taxing Officer properly considered all relevant factors, including the complexity of the constitutional petition, the time spent (approximately 10 years), the nature of the dispute involving land rights and public interest, and the professional responsibility borne by counsel. Therefore, the award of ***Kshs. 10,000,000/=*** as instruction fees was justified and reasonable. 41. In conclusion, the Advocate/Respondent submitted that the Taxing Officer ***correctly applied the law, exercised discretion judiciously***, and ***arrived at a fair and reasonable taxation***. Further, that the Client/Applicant has failed to demonstrate any error of principle or misdirection to justify interference. The Court was urged to dismiss the instant Reference with costs and uphold the taxation in its entirety. 42. Having considered the pleadings herein, the rival written submissions by the parties, and cited authorities, the following issues arise for determination: 43. ***Whether the Taxing Officer erred in law and principle in the taxation of the Advocate–Client Bill of Costs dated 4th October 2023.*** 44. ***Whether the instruction fees of Kshs. 10,000,000/= were excessive and unjustified.*** 45. ***Whether the taxation of the impugned items (including service and attendances) was contrary to the Advocates (Remuneration) Order.*** 46. ***Whether the increase of the taxed costs by 50% was lawful.*** 47. ***What orders should issue, including costs of the Reference.*** 48. ***On whether the Court can interfere with the Taxing Officer’s discretion*,** the court took into account the principles governing interference with taxation, which are trite, that a Judge will not interfere with the discretion of a taxing officer unless it is shown that: the officer acted on a wrong principle, failed to consider relevant factors, considered irrelevant factors, or the award is so manifestly excessive or low as to amount to an injustice. 49. In the case of ***Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd & Others* [1972] EA 162,** the Court held that costs must be reasonable, fair, and not impede access to justice. Similarly, in the case of ***Joreth Ltd v Kigano & Associates* [2002] 1 EA 92,** the Court of Appeal emphasized that taxation is an exercise of judicial discretion. Further, in the case of ***Bank of Uganda v Banco Arabe Espanol* [2000] UGSC 3,** the court held that a Judge should not interfere merely because he would have awarded a different figure. 50. Guided by these authorities, this Court must examine whether the Client/Applicant has demonstrated an error of principle as opposed to mere dissatisfaction with the quantum. 51. ***On whether the instruction fees were excessive*,** itis instructive to note that ***Instruction fees*** form the core of an ***Advocate–Client Bill*** ***of Costs***, and are intended to cover the entire scope of legal work, including taking instructions, advising, preparation, and conduct of the matter. This position was reinforced in the case of ***Premchand Raichand*** ***(supra).*** 52. Further, in the case of ***Joreth Ltd v Kigano & Associates* [2002] 1 EA 92**, the Court held that where the value of the subject matter is not ascertainable from the pleadings, judgment, or settlement, the taxing officer has discretion to assess instruction fees based on factors such as: 53. ***nature and importance of the matter;*** 54. ***complexity of the issues;*** 55. ***interests of the parties;*** 56. ***general conduct of proceedings***. 57. The Supreme Court in the case of ***Kenya Airports Authority v Otieno Ragot & Company Advocates* [2024] KESC 44 (KLR)** reaffirmed that where the value is indeterminate, the taxing officer’s discretion is paramount, provided it is exercised judiciously. 58. The Client/ Applicant argued that the matter was neither complex nor novel and that the Taxing Officer failed to justify the enhancement. Reliance was placed on the case of ***Republic v Minister for Agriculture & 2 Others Ex parte Samuel Muchiri W’Njuguna & 6 Others* [2006] eKLR**, where the Court stressed that discretion must be supported by clear reasoning. 59. Upon perusal of the impugned ruling on taxation, it is evident that the ***Taxing Officer*** considered the nature of the dispute, the duration (approximately 10 years) and the volume of documentation. These are relevant considerations under Schedule 6 of the Advocates (Remuneration) Order. 60. Similarly in the case of ***Jeremiah Muku v Methodist Church in Kenya Trustees Registered & Another* [2015] eKLR**, the Court held that instruction fees are not determined solely by value, but by a combination of factors, including labour, complexity, and importance. 61. In the instant matter, although the figure ***of Kshs. 10,000,000/=*** is substantial, this Court is not persuaded that it is so manifestly excessive as to amount to an error of principle, to warrant his court interference. 62. ***On whether the taxation of specific items was erroneous*,** the Client/ Applicant challenged the various items relating to service and attendances. ***Under Schedule 6*** of the ***Advocates (Remuneration) Order,*** service fees are capped within a limited radius, but allow additional reasonable charges depending on distance. The Advocate/ Respondent has demonstrated that the services herein involved travel between Nairobi and Narok, which justifies enhanced charges. With respect to ***attendances,*** Schedule 6A permits charges up to ***Kshs. 15,000/=*** depending on the nature of attendance. 63. In the Court in case of ***Lucy Waithera & 2 Others v Edwin Njagi t/a E.K. Njagi & Co. Advocates* [2017] eKLR**, it washeld that a taxing officer’s discretion will only be interfered with where it is shown that irrelevant factors were considered or relevant ones ignored. The Client/ Applicant has not demonstrated with specificity how the impugned items violated the scale or were improperly allowed. Mere dissatisfaction with the amounts is insufficient. 64. ***On whether the 50% increase was lawful*,** the Client/ Applicant argued that the ***50% increment*** applies only after taxation of ***Party-and-Party*** costs, relying on the case of ***Nyangito & Co. Advocates v Doinyo Lessos Creameries Ltd* [2014] eKLR** and ***Tom Ojienda & Associates Advocates v County Government of Narok* [2020] eKLR.** However, the Advocate/ Respondent, relied on various authorities supporting the contrary position, including: ***Kinyua Muyaa & Co. Advocates v Kenya Ports Authority Pension Scheme & 8 Others* [2017] eKLR 498 (KLR); *National Bank of Kenya v Rachuonyo & Rachuonyo Advocates* [2021] eKLR; *Dennis K.N. Magare & Another v Armajit Singh Gahir & 5 Others* [2021] KEHC 12931 (KLR).** 65. These authorities interpret ***Part B of Schedule 6*** to mean that ***Advocate–Client Bill of costs*** are derived by applying ***Schedule 6(A)*** and increasing the result ***by 50%, without*** the necessity of first taxing ***Party-and-Party costs.*** 66. Considering the findings of superior courts in the above cited cases, this Court finds and holds the latter line of authorities more persuasive, as it accords with the plain wording of the Remuneration Order. Additionally, it is not disputed that the issue of the ***50%*** increment was not raised before the Taxing Officer. 67. In the following cases; ***Ahmednasir Abdikadir & Co. Advocates v National Bank of Kenya Ltd* [2006] 1 EA 5 and *Showcase Property Ltd v Mugambi & Co. Advocates* [2020] eKLR**, the courts held that a Reference cannot introduce new issues not canvassed before the taxing officer. Accordingly, the challenge to the ***50% increment*** fails both substantively and procedurally. 68. Having carefully considered the pleadings and the rival written submissions, it is the considered findings and holding of this court that: 69. ***The Client/ Applicant has not demonstrated any error of principle on the part of the Taxing Officer;*** 70. ***The instruction fees, though high, were justified by the nature, complexity, and duration of the matter;*** 71. ***The taxation of the impugned items was within the discretion of the Taxing Officer and in accordance with the Remuneration Order;*** 72. ***The 50% increase of costs was lawful and properly applied*.** 73. Consequently, the Chamber Summons Application dated ***25th February 2025,*** is devoid of merit and is hereby dismissed**.** *Further, the taxation of the Advocate–Client Bill of Costs dated 4th October 2023, as assessed on 19th February 2025, is hereby upheld, with Costs* of this Reference are awarded to the Advocate/Respondent**.** ***It is so ordered***. **Dated, signed, and delivered virtually at Narok, this 14th day of May 2026.** ***L. Gacheru*** ***Judge.*** ***Delivered online in the presence of*** ***Elijah Meyoki…Court Assistant*** ***Ms. Lyona H/B for Mr. Maina Ngaruiya for the Client/ Applicant.*** ***Mr. Otieno H/B for Mr. Kere for Advocate/Respondent.*** ***L. Gacheru*** ***Judge.*** ***14th / 05/2026***