https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1735

Kemboy Law Advocates v Narok County Government (Miscellaneous Application E120 of 2023) [2026] KEELRC 1735 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1735 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Miscellaneous Application E120 of 2023 CN Baari, J June 25, 2026 Between Kemboy Law Advocates Advocate and Narok County Government Client Ruling 1.Before Court is the Advocate/Applicant’s chamber summons application dated 11th December, 2024, brought pursuant to Rule 11 (2) of the Advocates (Remuneration) Order, wherein the Applicant seeks the following orders: -i.That the Honourable Court be pleased to review, set aside and/or vacate the Ruling and Order of the Taxing Officer, Hon. Electer Akoth Riany delivered on 29th November, 2024, in which she taxed the Advocate/Applicant’s Bill of Costs dated 5th June, 2023, at Kenya shillings Four Hundred and Sixty-Five Thousand and Ninety-Eight and forty-Four Cents (Kshs. 465,098.44).ii.That this Honourable Court be pleased to issue appropriate directions for the taxation/assessment of the Advocate/Applicant’s Advocate-Client Bill of Costs dated 5th June, 2023 to proceed before any other Taxing Officer other than Hon. Electer Akoth Riany.iii.That the costs of this Reference be awarded to the Advocate/Applicant. 2.The Advocate/Applicant’s application is supported by the grounds on the face of the application and the affidavit of Julius K. Kemboy, sworn on 11th December, 2024. 3.The Applicant argues that it commenced the proceedings on 9th June 2023 by filing an Advocate–Client Bill of Costs dated 5th June 2023, and that the Deputy Registrar signed the Taxation Notice on 19th June 2023, scheduling the matter for taxation on 13th July 2023. 4.The Applicant avers that the Client/Respondent was served with the Bill of Costs on 20th June 2023, as evidenced by an Affidavit of Service on record, and that subsequently, on 10th July 2023, the firm of Maina Ngaruiya & Company Advocates filed a Notice of Appointment on behalf of the Client/Respondent, which was served upon the Advocate/Applicant on 11th July 2023. 5.It is the Applicant’s position that when the matter came up for taxation on 13th July 2023, the Advocate informed the Court that the Advocate–Client Bill of Costs had been duly filed and served, and since no objection had been filed, sought to have it taxed as drawn. 6.It avers further that Counsel for the Client/Respondent, having only recently come on record, requested additional time to file a response, but instead of filing a response as directed, the Client/Respondent filed a Notice of Preliminary Objection dated 24th July 2023, contending that the Court lacked jurisdiction under the Arbitration Act and that the Bill of Costs was premature and an abuse of process for failing to comply with the constitutional doctrine of exhaustion under Article 159(2)(c) of the Constitution. 7.The Applicant contends that on 4th October 2023, the Client/Respondent served the Advocate/Applicant with a Replying Affidavit dated 29th September 2023 and Composite Written Submissions, addressing both the preliminary objection and the contested items in the Bill of Costs. It states that in response, the Advocate/Applicant filed a Replying Affidavit sworn by Julius K. Kemboy on 14th November 2023, together with written submissions opposing the preliminary objection and supporting the Bill of Costs. 8.The Applicant avers further that on 21st November 2023, Hon. Nyamora upheld the Client’s preliminary objection, stayed the taxation proceedings, and referred the dispute to arbitration, but following the Advocate’s Reference dated 7th February 2024, Hon. Lady Justice Linnet Ndolo, in a ruling delivered on 30th September 2024, set aside the taxation ruling and awarded costs to the Advocate. 9.The Applicant avers that following the ruling of Hon. Lady Justice Linnet Ndolo, the matter came before the Taxing Officer, Hon. Electer Akoth Riany, on 28th October 2024, who noted that the Advocate’s Reference had been allowed, thereby reinstating the Advocate–Client Bill of Costs for taxation. It avers that subsequently, the parties confirmed that they had filed and served their respective affidavits and written submissions, save for the Client/Respondent’s submissions on a separate Party and Party Bill of Costs, for which it was granted 14 days to comply. 10.It avers that on 29th November 2024, the Taxing Officer taxed the Advocate–Client Bill of Costs at Kshs. 465,098.44, and being dissatisfied with the taxation, the Advocate, by two letters dated 29th November 2024, requested the Taxing Officer’s reasons and certified copies of the ruling pursuant to paragraph 11(2) of the Advocates Remuneration Order, and served both letters on the Client/Respondent’s advocates the same day. 11.The Applicant states that the Taxing Officer did not provide the requested reasons for taxation, although the ruling was uploaded to the Judiciary e-Filing System on 4th December 2024. Consequently, the Advocate filed the present application seeking to have the taxation ruling set aside, contending that the Taxing Officer committed errors of law and principle in taxing the Bill of Costs. 12.Specifically, the Advocate argues that the Taxing Officer applied the wrong schedule under the Advocates Remuneration Order by assessing instruction and getting-up fees as though the matter were a constitutional petition rather than an employment dispute, that she failed to correctly determine the value and nature of the subject matter, overlooked the fact that that the suit had been consolidated with seven other matters, failed to consider relevant factors such as the complexity of the case, the labour, skill and responsibility undertaken by the Advocate, the interests of the parties, and the conduct of the proceedings. 13.The Applicant further avers that the Taxing Officer improperly exercised her discretion and ultimately awarded costs that were manifestly low, disproportionate, and unjust by treating the taxation as a mere mathematical exercise rather than fairly valuing the legal services rendered. 14.The Advocate contends that the Taxing Officer’s misapplication of the applicable law and taxation principles prejudiced its rights and interests, resulting in an unjust taxation of the Bill of Costs. 15.The Applicant therefore urges the Court to set aside the taxation ruling delivered on 29th November 2024 and direct that the Advocate–Client Bill of Costs dated 5th June 2023 be taxed afresh before a different Taxing Officer. 16.The Advocate maintains that granting the application would serve the interests of justice. 17.The Client/Respondent opposed the application vide a Replying affidavit sworn on 3rd February, 2025, by John Mayiani Tuya, the County Secretary of the Client. 18.The Client/Respondent states that on 29th November 2024, the Deputy Registrar, Hon. Elector Akoth Riany, taxed the Advocate–Client Bill of Costs at Kshs. 465,098.44, correctly finding that the Bill was exaggerated and inconsistent with Schedule VI of the Advocates Remuneration Order. 19.It maintains that the taxation was proper, and argues that the underlying Employment and Labour Relations Court Cause No. 31 of 2019 (consolidated with seven other suits) concerned a claim valued at Kshs. 733,299.25, which was expressly reflected in the Advocate’s Bill of Costs. Accordingly, the Client argues that the value of the subject matter was ascertainable and ought to have formed the basis for taxing the Bill of Costs. 20.The Client/Respondent contends that the Advocate’s claims for instruction fees and getting-up fees are grossly exaggerated, unlawful, and unreasonable. It argues that under Schedule VI(d) of the Advocates Remuneration Order, the applicable instruction fee for defending the suit should be Kshs. 90,000, based on the value and nature of the claim. It avers that the getting-up fee should be assessed at Kshs. 30,000, being one-third of the instruction fee, in accordance with the applicable remuneration provisions. 21.The Client/Respondent further argues that several items in the Advocate’s Bill of Costs were improperly charged contrary to Schedule VI of the Advocates Remuneration Order. It contends that letters should be charged at Kshs. 1,000 each, rendering the amounts claimed under Items 4, 8, and 42 unlawful. It also maintains that attendances at the court registry for filing documents are chargeable at Kshs. 500, making the amounts claimed under Items 51, 55, and 56 excessive. 22.Additionally, the Client submits that court mentions are chargeable at Kshs. 1,900 each, and therefore the sums claimed under Items 26, 28, 30, 32, 36, 38, 40, 43, and 47 are unreasonable and should be reduced accordingly. 23.The Client/Respondent further contends that the Advocate unlawfully overstated the charges for court hearing attendances, arguing that under Schedule VI of the Advocates Remuneration Order, hearings lasting less than half a day should be taxed at Kshs. 3,000. It also submits that the sums claimed under Items 52 and 53 are excessive and should each be taxed at Kshs. 1,900. 24.The Client maintains that the Deputy Registrar correctly found the Advocate’s Bill of Costs to be excessive, unreasonable, and contrary to Schedule VI, and therefore urges the Court to dismiss the Advocate’s Reference and uphold the taxation ruling of 29th November 2024. 25.Parties canvassed the reference by way of written submissions, which have been duly considered. Analysis and Determination 26.The sole issue for determination is whether the Applicant has established sufficient grounds to warrant interference with the Taxing Officer's decision delivered on 29th November, 2024. 27.The jurisdiction of this Court on a reference from the decision of a taxing officer is now well settled. A Judge does not sit on appeal against the taxing officer merely because he or she would have arrived at a different figure. Interference is only warranted where it is demonstrated that the taxing officer erred in principle, considered irrelevant matters, failed to consider relevant matters, or where the award is so manifestly excessive or so low as to amount to an injustice. 28.This principle was affirmed by the Court of Appeal in First American Bank of Kenya Ltd v Shah & Others [2002] KEHC 1277 (KLR), where the Court held that a Judge should not interfere with the exercise of a taxing officer's discretion unless the taxing officer has erred in principle, and that an error in principle includes taking into account irrelevant factors or failing to consider relevant ones. 29.The same principles were reiterated in Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd & Another [1972] EA, where the Court emphasized that costs should neither be so high as to impede access to justice nor so low as to amount to unjust compensation to advocates, and that taxation must reflect fairness to both the advocate and the client. 30.The Applicant’s complaint is that the Taxing Officer applied the wrong schedule under the Advocates Remuneration Order by treating the underlying proceedings as a constitutional petition instead of an employment dispute. 31.The court record demonstrates that the Taxing Officer appreciated the nature of the dispute before her. The underlying proceedings evidently arose from an employment dispute before the Employment and Labour Relations Court involving unremitted union dues. 32.It is also evident that the Taxing Officer considered the pleadings and identified the monetary value of the claim. Indeed, the Client correctly points out that the value of the subject matter was specifically pleaded as Kshs. 733,299.25. That figure was ascertainable from the pleadings and therefore provided the proper basis for assessment of instruction fees in accordance with the principles laid down in Joreth Ltd v Kigano & Associates [2002] KECA 153 (KLR). 33.Further, although the Applicant contends that because the suit had been consolidated with seven other matters, the Taxing Officer ought to have awarded substantially higher instruction fees, consolidation of suits does not automatically entitle an advocate to enhanced instruction fees. The purpose of consolidation is to avoid multiplicity of proceedings, duplication of evidence, and unnecessary costs. 34.In my view, unless it is demonstrated, which it has not, that the advocate undertook substantially distinct legal work beyond that ordinarily contemplated in the lead matter, consolidation alone cannot justify multiplication of instruction fees. The Court of Appeal in Republic v Minister for Agriculture & 2 Others Ex Parte Samuel Muchiri W'Njuguna & 6 Others [2006] eKLR, cautioned that taxation should not reward advocates merely because matters appear large or complex, but should remain anchored on the actual professional responsibility undertaken and the applicable scale under the Remuneration Order. 35.The Applicant has equally argued that the Taxing Officer failed to consider the complexity of the matter, the labour expended, professional skill and responsibility assumed. While these are undoubtedly relevant considerations, the law does not require a taxing officer to expressly discuss every individual factor in the ruling. It is sufficient that the ruling demonstrates that the taxing officer appreciated the applicable principles and exercised discretion judicially. 36.I find nothing on the record demonstrating that the Taxing Officer ignored those considerations or exercised her discretion capriciously. 37.On the issue of the individual items challenged by the Applicant, Taxation of attendances, letters, registry attendances, mentions, and hearing fees falls squarely within the discretion of the taxing officer under the applicable Schedule of the Advocates Remuneration Order. 38.The Applicant has further argued that the award of Kshs. 465,098.44 is manifestly low. Considering the pleaded value of the claim, the applicable provisions of Schedule VI of the Advocates Remuneration Order, and the nature of the proceedings, the amount awarded cannot be said to be so inordinately low as to demonstrate that the Taxing Officer acted on wrong principles or occasioned an injustice. 39.In the final analysis, I find and hold that the Applicant has failed to demonstrate any identifiable error of principle, misdirection, or improper exercise of discretion that would justify interference with the decision of the Taxing Officer. 40.Accordingly, the Court finds that the Taxing Officer properly exercised her discretion in taxing the Advocate–Client Bill of Costs. The Chamber Summons dated 11th December 2024 is therefore dismissed, and the taxation ruling delivered on 29th November 2024 is upheld. 41.To bring this matter to a close, I make no orders on costs. 42.Orders accordingly. SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 25TH DAY OF JUNE, 2026.C. N. BAARIJUDGEAppearance:Mr. Otieno h/b for Mr. Kere for the Advocate/ApplicantMs. Maega h/b for Mr. Maina Ngaruiya for the Client/RespondentMs. Esther S -C/A