Kilonzo & Company Advocates v Haria (Miscellaneous Case E597 of 2024) [2026] KEHC 9871 (KLR) (Commercial and Tax) (2 July 2026) (Ruling)

Kilonzo & Company Advocates v Haria (Miscellaneous Case E597 of 2024) [2026] KEHC 9871 (KLR) (Commercial and Tax) (2 July 2026) (Ruling) Neutral citation: [2026] KEHC 9871 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Miscellaneous Case E597 of 2024 F Gikonyo, J July 2, 2026 Between Kilonzo & Company Advocates Advocate and Vipul Premchad Haria Client Ruling 1.There are two applications before the court. Advocate’s reference 2.The advocate’s reference application dated 10.3.2025 is against the ruling of 25.2.2025 taxing its bill of costs dated 14.4.2010 drawn at Kshs. 7,831,247/- at Kshs. 4,615,297/-. 3.The application is supported by the affidavit sworn by Christine W. Githinji on 10.3.2025. 4.The major grounds are that the taxing officer did not factor: -1.the instruction fees of Kshs. 5,000,000/- when taxing the bill of costs; and2.the complexity of the matter as it required the utmost care and attention of Mr. Mutula Kilonzo Senior EGH, EBS, a Senior Counsel. 5.The advocate asserted that the bill of costs ought to be taxed at a higher scale as per Schedule 5 of the Advocates Remuneration Order (ARO). 6.The bill of costs emanated from the client’s instructions to defend him in Divorce Cause No. 69 of 2005 in the High Court of Kenya. The instructions were issued on 25.5.2005 and withdrawn in 2010. Client’s application 7.The client filed a chamber summons dated 5.4.2026 mainly under Order 2 Rule 15 of the Civil Procedure Rules, seeking the following orders: -1.setting aside the taxation ruling dated 25.2.2025 and declaring the proceedings thereof to be defective on account of the advocate’s fatal failure to serve a notice of taxation.2.striking out the advocate’s reference dated 10.3.2025 and vacating the directions fixing it for ruling on 2.7.2026.3.to find that the client duly remunerated the advocate for its legal services to the tune of Kshs. 5,700,000/- 8.The client’s application is supported by the supporting affidavit sworn by him. Response 9.In opposition to the client’s application, the advocate filed a replying affidavit sworn by Kieti D. Ndolo. Its core contentions are that: -1.The notice of taxation was served upon the client.2.It was not remunerated to the tune of Kshs. 5,700,000/-. Such a claim ought to have been raised before the taxing officer. 10.The advocate highlighted that by judgment delivered by the Court of Appeal on 19.6.2020, its bill of costs dated 14.4.2010 was to be placed before a new taxing officer for fresh taxation. That thereafter, it applied for reconstruction of the file as Misc Appl No. 35 of 2010 could not be traced. The court allowed the application for reconstruction and directed that the file be transferred to this court. That the file was transferred and assigned a new case number and listed for taxation on 8.10.2024. 11.The advocate asserted that it served the notice of taxation dated 14.8.2024 upon the client and an affidavit of service was filed. That on 8.10.2024, there was no appearance for both parties and the court directed that the matter be mentioned on 21.11.2024. That the client was served with a mention notice dated 11.10.2024 and an affidavit of service filed on 18.11.2024. 12.That on 21.11.2024, the court directed the parties to file their submissions on the bill of costs. There was no appearance for the client. That the court scheduled the matter for ruling on 25.2.2025. That the client was served with a ruling notice on 21.11.2024 and the affidavit of service was filed on 25.2.2025. On 25.2.2025, the taxing officer delivered the impugned ruling. 13.The advocate highlighted that the client did not file a response or submissions in response to the reference within 21 days as directed by the court on 6.5.2025. 14.The advocate faulted the client for challenging the proceedings 14 months after and when its reference has been scheduled for ruling, terming it in bad faith and procedural indolence. Submissions 15.The advocate filed written submissions dated 9.6.2025. 16.There were no submissions filed by the client on the Judiciary’s case tracking system at the time of penning this ruling. 17.The advocate relied on First American Bank of Kenya v Shah & Others [2002] eKLR on the principles that guide interference with the taxing officer’s taxation award. 18.The advocate submitted that rule 22 (1) of the Advocates Remuneration Order (ARO) 2014 allows an advocate to elect to charge their remuneration according to schedule 5 of the ARO. It added that schedule 5 makes for provision for consideration of factors such as the care and labour required, the number and length of the papers to be perused, the nature and importance of the matter, the amount or value of the subject matter and all other reasonable circumstances affecting the case when calculating instruction fees to be charged. 19.The advocate submitted that instruction fees must consider the complexity of the matter, the value of the subject and the responsibility. It relied on Joreth Kigano & Associates [2002] eKLR, Maua t/a Mauwa & Company Associates v JRS Group Limited (Miscellaneous Application E007 of 2021) [2023] eKLR and Rachier & Amollo Advocates v Noble Gases International Limited [2023] eKLR. 20.The advocate contended that the taxing officer did not consider all the factors hence awarding it a substantively low amount for instructions they received and work done. 21.The advocate urged the court to allow the reference and review the taxation of the bill of costs. It also urged the court to dismiss the client’s application. Analysis and Determination 22.The issues before the court are whether the taxation ruling ought to be set aside; whether the advocate’s reference application should be struck out and whether the advocate was remunerated for its legal services to the client. Threshold 23.The overarching principle as regards reference applications is that the court will not interfere with a taxing officer’s decision unless it is shown that there was an error of principle such as considering irrelevant factors or failing to consider relevant factors. First American Bank Ltd v Shah & another [supra] Notice of taxation 24.The client contended that the taxation ruling and the proceedings are defective on account of the advocate’s fatal failure to serve a notice of taxation. 25.On the other hand, the advocate asserted that it served the notice of taxation dated 14.8.2024 upon the client and an affidavit of service was filed. 26.Rule 72 of the ARO states that: -“When a bill of costs has been lodged for taxation as aforesaid the registrar shall, upon payment of the fee prescribed, issue to the party lodging the bill a notice of the date and time (being not less than five days after the issue of such notice, unless a shorter time is specially allowed by the registrar) fixed for taxation thereof and shall also issue a copy of such notice, accompanied by a copy of the bill, to each advocate and other person whose name is endorsed on the bill as entitled to receive notice of the taxation thereof:Provided that where any person so entitled to receive notice cannot be found at his last-known address for service the taxing officer may in his discretion by order in writing dispense with service of notice upon such person.” 27.Serving a taxation notice is important because it ensures fairness, due process, and the right to be heard before costs are taxed. 28.The advocate exhibited a copy of the taxation notice dated 14.8.2024 and the affidavit of service sworn by David K. Kivindu on 4.10.2024. The licensed court process server stated that on 14.8.2024, he received the taxation notice indicating that the bill of costs would be taxed on 8.10.2024 and on the same date emailed it to the client’s advocates, Wandabwa Advocates. Annexed to the affidavit are the letter and the taxation notice. However, there is no copy of the email attached. 29.The client claimed that the service was effected irregularly on 4.10.2024 and 8.11.2024 because the forwarding letters contained the wrong email address; info@wandbwaadvocates.co.ke instead of info@wandabwaadvocates.co.ke. That none of the emails was received by his advocates. He attached photostats of his advocates emails. 30.The client claimed that there was mischief in the service of the taxation notice to the wrong email as the subsequent ruling notice was sent to the correct email. 31.There is a presumption of service as stated in the process server’s report and that the burden lies on the person questioning it to show the return is incorrect. MB Automobile v Kampalla Bus Service [1966] EA 480 32.However, in the circumstances of this case, the advocate has not proved service of the taxation notice upon the client as required as it did not produce a copy of the email sent to the client’s advocates. The court cannot ascertain that the taxation notice was served upon the client’s advocates through the correct email address. 33.The client is entitled to the right to be heard, and this includes the right to be informed of the taxation proceedings to have an opportunity to be heard. It is a cannon of natural justice that no person should be condemned without being given notice of the case against them and an opportunity to be heard. This is referred to as audi alteram partem. Article 50 (1) of the Constitution. 34.Although the advocate faulted the client for filing its application with inordinate delay, the advocate did not file any supplementary affidavit to produce a copy of the email forwarding the taxation notice. 35.Courts are enjoined to administer substantive justice without undue regard to procedural technicalities. Article 159 92) (d) of the Constitution 36.I do note also that the advocates reference is challenging the taxation. 37.In sum, there is established sufficient basis for the setting aside of the taxation proceedings on account of lack of succinct proof of service of the taxation notice. Disposal 38.In conclusion, the court makes the following orders: -1.The client’s application dated 5.4.2026 is partly allowed in terms of prayers 4 and 5.2.The advocate/client bill of costs dated 14.4.2010 be remitted back for taxation before any other taxing officer other than Hon. Adisa. The taxation be expedited to avoid further delay.3.As a consequence, the advocate’s reference is rendered premature.4.Given the result herein, each party shall bear own costs in each application. DATED, SIGNED AND DELIVERED AT NAIROBI THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 2ND DAY OF JULY, 2026-------------F. GIKONYO MJUDGEIn the presence of: -Ms. Kithinji for Kethi for AdvocateOundo for RespondentCA – Ivan/Aggrey