https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8260

Kimitei & 2 others v Ingutia t/a MA Ingutia & Co Advocates (Miscellaneous Civil Application E037 of 2026) [2026] KEHC 8260 (KLR) (2 June 2026) (Ruling) Neutral citation: [2026] KEHC 8260 (KLR) Republic of Kenya In the High Court at Eldoret Miscellaneous Civil Application E037 of 2026 RN Nyakundi, J June 2, 2026 IN THE MATTER OF THE ADVOCATES ACT(CAP.16). AND IN THE MATTER OF THE ADVOCATES (REMUNERATION) (AMENDMENT) ORDER 2014. AND IN THE MATTER OF A REFERENCE AGAINST THE RULING OF THE TAXING OFFICER, HON. C.M. WATIMАН (DR), DELIVERED ON 29TH JANUARY 2026 IN ELDORET MISC. APPL. NO. E025 OF 2025 Between Lucy Kimitei 1st Applicant Beatrice Chebet 2nd Applicant Patrick Kiplimo 3rd Applicant and Margaret Ingutia t/a MA Ingutia & Co Advocates Respondent Ruling 1.Before this Court is an Application dated 11th February 2026. The Applicant seeks the following orders;a.Spentb.Pending the hearing and determination of this application interpartes, there be a temporary stay of execution of the ruling delivered by the Taxing Master on the 29th January 2026 in Eldoret High Court Misc. Appl. No. E025 of 2025.c.The Taxing Master's decision/ruling dated 29th January 2026 in Eldoret High Court Misc. Appl. No. E025 of 2025, together with the Certificate of Costs issued thereafter, be and is hereby set asided.The Respondent's Bill of Costs dated 8th July 2025 be remitted back to a different Taxing Officer for fresh taxation and/or assessment of costs.e.The costs of this Reference be awarded to the Applicants 2.The Application is made on the following grounds;i.That the Taxing Master delivered a prejudicial ruling and the Applicants are aggrieved by the said decisionii.That the Taxing Master erred in law and fact by failing to appreciate that she had no jurisdiction to entertain a Bill of Costs where there exists an agreement on fees.iii.That the Taxing Master erred in law and fact when she took into account irrelevant considerations while ignoring relevant evidence on record thereby arriving at a wrong decision.iv.That the Taxing Master erred in law and fact by failing to give reasons for the taxation of the Bill of Costs at Kshs. 334,790 which is manifestly excessive in comparison to the work done by the Respondent.v.That the Taxing Master erred in law and fact by proceeding to tax the Bill of costs without calling for the mother file for confirmation of some items/issues, which file has been pending ruling before the trial Court since 8th October 2025 to date.vi.That the Taxing Master erred in law and fact when she failed to consider the Applicants' Replying Affidavit and submissions on record which would have guided her accordingly to arrive at a fair decision.vii.That the Taxing Master erred in law and fact by taxing the items on the bill of costs far above what is permitted and/or prescribed under the Advocates Remuneration Order.viii.That the Taxing Master erred in law and fact by holding that the items on the bill of costs were drawn to scale, whereas she was required to scrutinize each item individually, including interrogation of the availability of receipts.ix.That the Taxing Master failed to give reasons for the amounts taxed, rendering the decision unreasonable and unacceptable. 3.In response to the Application, the Respondent filed an Affidavit dated 10th March 2026 sworn by one Margaret Ingutia who deponed as follows;i.That I am the Advocate/Respondent herein, competent with the facts of this matter and therefore competent to swear this Affidavit.ii.That I have read and understood the Chamber Summons application dated 11th February 2026, the Supporting Affidavit sworn by the Applicant, and the grounds in support thereof, and I wish to respond as hereunder.iii.That I do not object to the grant of a temporary stay of execution of the ruling delivered by the Honourable Taxing Master on the 29th January 2026, wherein the Advocate/Client Bill of Costs was taxed at KES. 334,790/-.iv.That similarly, I do not oppose the grant of stay of execution pending the hearing and determination of the Applicant's intended Reference. I respect the Applicant's constitutional right to access justice and to have their day in court.v.That contrary to the assertions made in paragraphs 5, 6, 7, 8, 9, and 10 of the Applicant's Supporting Affidavit, there is no, and has never been, any valid remuneration agreement in writing signed by the Respondent/Client as mandatorily required by law governing agreements between advocates and clients.vi.That the Applicant's application is founded on a fundamentally incorrect factual premise under paragraph 11 and 12 of the Supporting Affidavit. The Applicant alleges that the Taxing Master erred by failing to appreciate that she had no jurisdiction to entertain the Bill of Costs due to the existence of a remuneration agreement.vii.That the only documents in our possession relating to fees are routine correspondence and pro-forma invoices issued by the Respondent. None of these documents constituted or were ever intended to constitute a binding agreement fixing the advocate's remuneration. I crave to rely on the contents of the said correspondence for their full tenor and effect.viii.That in particular, the letter dated 16th June 2025 and annexed to the Applicant's affidavit as 'BC2' is denied in totality. I categorically state that this document was not signed by the Applicant/Client, nor did it reflect the final consensus between the parties on the issue of legal fees.ix.That the Applicant's claim that the Taxing Officer lacked jurisdiction is therefore a factual misrepresentation. The Applicant cannot now seek to approbate and reprobate by alleging the existence of an agreement that was never concluded in accordance with the strict statutory requirements. The jurisdiction of the Taxing Officer was properly and lawfully invoked.x.That the only evidence the Applicant purported to rely on before the Taxing Master was the alleged unsigned correspondence, which they erroneously characterized as a binding remuneration agreement. The production of this document does not constitute a valid agreement.xi.That the Taxing Master is entitled to consider the nature of the instructions, the complexity of the matter, the value of the subject matter, and the time expended by the Advocate. These are the very factors that the Taxing Master is statutorily mandated to consider when arriving at a fair and reasonable taxation.xii.That in the instant case, the Taxing Master was satisfied that the material placed before her by both parties was adequate to enable her to tax the Bill of Costs. The Applicant did not, at any point during the taxation proceedings, raise any objection or request that the mother file be produced. Neither did the Applicant demonstrate that the mother file contained any document that was material to the taxation and which was not already before the Taxing Master.xiii.That the assertion in paragraph 9 of the Applicant's Supporting Affidavit-that the Taxing Master taxed items on the Bill of Costs significantly above the rates prescribed in the Advocates' Remuneration Order-is misconceived and lacks factual foundation. In fact, as a matter of law, the Bill of Costs was undertaxed as of the reference date, 10th March 2026.xiv.That the Advocates' Remuneration Order prescribes minimum fees and not maximum fees. The Order expressly empowers the Taxing Master to enhance instruction fees and other items where circumstances warrant, taking into account the nature and importance of the matter, the interest of the parties, the complexity of the issues, the time expended, and all other relevant circumstances.xv.That the Applicant's allegation that items were taxed "far above" what is prescribed is a bare allegation made without specificity. The Applicant has not identified:i.Which specific items in the Bill of Costs were allegedly taxed above the prescribed scale;ii.What the prescribed scale fee for each such item is;iii.What the Taxing Master awarded for each such item; andiv.The basis upon which the Taxing Master's award is said to be excessive.xvi.That this omission is telling and demonstrates that the Applicant's ground is a mere afterthought lacking any factual foundation.xvii.That without prejudice to the foregoing, where a suit involves a substantial claim or is of considerable importance to the parties, the Taxing Master is entitled to adjust instruction fees above the minimum prescribed in the Schedule. The Taxing Master's discretion is not limited to a mechanical arithmetic computation but requires a holistic assessment of the work performed and the interests involved.xviii.That the Applicant has not demonstrated any error in principle on the part of the Taxing Master. Their complaint relates essentially to quantum, which is insufficient to warrant interference.xix.That the Applicant's assertion that the Taxing Master erred by holding that items on the Bill of Costs were drawn to scale without scrutinizing each item is unfounded and misconceived. As a matter of law, the Bill of Costs was nonetheless under-taxed as of the reference date, 10th March 2026.xx.That we respectfully request the Court to grant us additional time to file and pursue our reference to the Taxing Master. This will allow us to fully address the issues raised and demonstrate that the Applicant's claims are incorrect.xxi.That our reference will show that the Bill of Costs was grievously under-taxed, contrary to the Applicant's assertions that the Taxing Master acted improperly.xxii.That we have already filed our application for enlargement of time together with our draft reference and Notice of Objection to Taxation, ensuring the Court has all the necessary documents to consider our position.xxiii.That we pray that our reference be heard concurrently with the Applicant's reference so that the Court can have a complete and accurate record of the matters in dispute and make a fair determination.xxiv.That the averments set out in the Supporting Affidavit of the Applicant that are not specifically controverted herein should be treated as mere allegations and are denied in their entirety.xxv.That it is in the interest of justice that this Honourable Court dismisses the Applicant's application dated 11th February 2026 with costs and proceeds to rule on our intended Reference dated 10th March, 2026.xxvi.That what is deponed to herein is true and correct to the best of my knowledge, information, and belief. Decision 4In our legal system, the High Court is empowered to order a Bill of Cost to be taxed afresh by a different Deputy Registrar or commonly known as Taxing Master, when the initial Taxing Master committed significant errors of principle or failed to provide reasons for the decision or demonstrate bias. This is how the High Court has navigated the litigation reference landscape on decision arising out of the Taxing Master.Giro Commercial Bank Limited v Benlucks (K) Limited [2022] KEHC 45 (KLR) (31 January 2022) Reasons: The Deputy Registrar (Hon. S.A. Opande) allowed a Bill of Costs without giving reasons and failed to properly interrogate the bill, even though it was unopposed.Order: The High Court set aside the ruling and directed the bill be taxed afresh by any other Deputy Registrar.RULING ELCC E075 of 2021: Review of Taxing Master's Decision (Strathmore University Law Case) Reasons: The Taxing Master (Hon. Jane Kamau) erred in determining the value of the subject matter, leading to an incorrect, excessive cost calculation.Order: The court set aside the ruling and ordered the bill to be remitted to a different Taxing Officer for fresh taxation.Evans M. Gakuu & 66 Others v National Bank of Kenya Ltd & 8 Others [2013] eKLR Reasons: The Taxing Master (A.K. Ndungu) used a wrong principle by applying a higher scale when the suit was withdrawn and failed to appreciate that the claims were distinct rather than a global claim. The fee was deemed manifestly excessive.Order: The taxation was set aside, and the bill was ordered to be taxed afresh by a different Deputy Registrar.Patel & Another v Mogaka Yantika & Co Advocates (2023) Reasons: The Taxing Master made a mathematical error, and there was a contradiction between the allowed items and the final findings.Order: While the court corrected the error in this instance, it highlighted the necessity for taxing officers to correctly account for all items 5.In exercising jurisdiction on reference filed before this Court from the decision of a Taxing Master the following principles which apply on substantive appeals from substantive judgment which emanate from the Magistrate Court or Tribunals apply Mutatis Mutandis. For the Court to interfere with the discretion of a single Judge or Taxing Master it must be shown that the single Judge or Taxing Master acted on matters which he/she should not have acted or he failed to take into consideration matters which he should have taken into consideration and in doing so he arrived at a wrong conclusion or that he was plainly wrong in his decision. See African Airlines International Ltd v Eastern& Southern Africa Trade & Development Bank [2003] KLR 140 at 143. 6.It is trite that Appellate Courts possess inherent and statutory jurisdiction to revise, modify or set aside lower Court decisions based on errors of law, facts, or procedure. Appellate Courts in our Kenyan legal system generally do not retry cases but review the trial records to ensure a fair trial or if they take on the matter fully they may also receive fresh evidence in rare circumstances. 7.In addition to the above case laws Courts have also spoken crystal clear on matters of taxation emanating from a Taxing Master and further filed as a reference to an Appeal Court. The threshold to interfere in such decisions is very high and restrictive in nature unless the Applicant demonstrates that the exercise of discretion was wrong in principle and no explanation was given for the decision. The following cases further entrench the law in this field; In the case of Mbogo & Another vs Shah [1968] EA, p.15 the Court held that; “An appellate court will not interfere with the exercise of the trial court’s discretion unless it is satisfied that the court in exercising its discretion misdirected itself in some matters and as a result arrived at a decision that was erroneous, or unless it is manifest from the case as a whole that the court has been clearly wrong in the exercise of judicial discretion and that as a result there has been misjustice.” In the case of First American Bank of Kenya v Shah and others [2002] EALR 64 the court held that; - “First, I find that on the authorities, this court cannot interfere with the taxing officer’s decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was so manifestly excessive as to justify an inference that it was based on an error of principle.” It was further held in the case of James v Nyeri Electricity [1961] EA 492, at pages 492 – 293 that: “Where there has been an error in principle the court will interfere but questions solely of quantum are regarded as matters with which the taxing officers are particularly fitted to deal and the court will intervene only in exceptional cases. An example of such an exceptional case is that of Haiders Bin Mohamed Elmandry and Others v Khadija Binti Ali Bin Salim (4) 1956, 23EACA313, in which an instructions fees of the 9,000/= was considered so excessive as to indicate that it must have been arrived at unjudicial or on erroneous principles.” 8.For those reasons, having reviewed the record of this impugned decision the reasons given by the Taxing Master as to the taxation of the various items as to concretize the latter and the spirit of the Advocates Remuneration Order remain largely unconvincing to the parties. The judicial discretion by a Taxing Master is purely not mathematical in the choice of one denominator with another given the brevity of the accompanying notes in the legislative scheme of the Bill of Costs. The Advocates of the High Court, in certain Bills of Costs, ought to provide material evidence demonstrating the complexity of the issues involved, the research undertaken, and the legal time spent in providing the necessary professional services to the client, which is of fundamental importance. This is very significant given the constitutional imperative under Article 48 on access to justice. I therefore hold the view that the choice of one figure and another as reflected in the impugned Ruling of the Taxing Master in terms of judicial discretion is not adding up. As a consequence of it all, the decision be and is hereby set aside and a retrial on the Bill of Cost be held before another Taxing Master other than Hon. Wattimah. This case docket shall be placed before the Deputy Registrar to action accordingly. Status conference on 17/6/2026. It is so ordered. DATED AND DELIVERED AT ELDORET VIA CTS THIS 2ND DAY OF JUNE 2026.........................................R. NYAKUNDIJUDGERepresentation:M/s Keter Nyolei & Co. AdvocatesM/s M.A. Ingutia & Co. Advocates