https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9816

Kinyanjui Njuguna & Company Advocates v Corporate Insurance Company Ltd (Miscellaneous Application E278 of 2024) [2026] KEHC 9816 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9816 (KLR) Republic of Kenya In the High Court at Machakos Miscellaneous Application E278 of 2024 AN Ongeri, J June 25, 2026 Between Kinyanjui Njuguna & Company Advocates Applicant and Corporate Insurance Comapny Ltd Respondent Judgment 1.This reference application is challenging the taxing officer's decision under the Advocates Remuneration Order. 2.The application is specifically brought under the provisions of Rule 11(2) of the Advocates (Remuneration) Order, which provides the mechanism for a party aggrieved by a taxation decision to apply to a judge by way of a Chamber Summons, setting out the grounds of their objection after the taxing officer has provided reasons for their decision on the disputed items. 3.The applicant, having lodged a formal objection to the items it was dissatisfied with by a letter dated 20th December 2024, seeks the court's intervention to set aside, review, or vary the decision of the Taxing Master. 4.The application is anchored on the principle that the taxing officer acted on a wrong principle by disregarding pertinent factors, failing to apply the correct scale, and thus arriving at a wrong conclusion that does not pass the test of judicial discretion. 5.The applicant contends that the decision was erroneous and that it is necessary and in the interest of justice for the court to grant the orders sought. 6.This challenge is rooted in the well-established legal principle that a judge will not interfere with a taxing officer's discretion unless it is shown that the decision was based on an error of principle, that the fee awarded was so manifestly excessive as to justify an inference of an error in principle, or that the discretion was exercised capriciously and in abuse of the proper application of correct legal principles. 7.The supporting affidavit, sworn by Kinyanjui Theuri on 20th January 2025, serves to verify the factual basis for the application. 8.The deponent, who is an advocate in the firm of Kinyanjui Njuguna & Co. Advocates, asserts that he is duly authorized to make the affidavit and that the facts contained within it are within his own knowledge, save where the source of his information is otherwise indicated. 9.He confirms the firm's representation of the applicant and their dissatisfaction with the Taxing Master's ruling. 10.The affidavit is made in support of the Reference application and reiterates the grounds of objection, including the argument that the taxing officer misdirected himself on matters of principle. 11.The deponent also references the letter of objection sent to the taxing officer on 20th December 2024, highlighting the specific items and parts of the decision the applicant is aggrieved with. 12.The affidavit and its annexed exhibits, including the letter of objection, are intended to provide the court with the necessary evidentiary basis to demonstrate the errors of principle alleged and to persuade the court to exercise its supervisory jurisdiction over the taxation process. 13.Ann Odongo, an Advocate of the High Court of Kenya and the Legal Manager of the Respondent, swore the replying affidavit as follows;i.That she had read and understood the Chamber Summons Application dated 4th December 2024, which they opposed for reasons set out therein.ii.That that the Taxing Officer applied the correct legal principles in arriving at his/her decision on 21/11/2024.iii.That the disputed Items were taxed off on grounds that they were either inapplicable under Schedule 7 of the ARO or that the Applicant had not filed receipts in support of the alleged costs.iv.That the Applicant had not demonstrated that the taxing officer's decision on 21/11/2024 was based on an error of principle as to warrant the interference by this Honorable Court.v.That the instant Application was therefore inept, incompetent, bad in law and devoid of any merit whatsoever and should be dismissed with costs. 14.The parties filed written submissions as follows; 15.The applicant did not file any submissions in this Reference. 16.The respondent filed submissions opposing the advocate’s bill of costs, which was filed under Schedule 7 of the Advocates Remuneration Order, 2014. 17.The respondent argues that once an advocate elects to proceed under Schedule 7, they are bound strictly by that schedule and cannot import items from other schedules, such as Schedule 6, as this would amount to impermissible mixing of taxation regimes. 18.They contend that a taxing officer has no jurisdiction to create items not provided for in the elected schedule and that a party cannot approbate and reprobate. 19.On the instruction fee, the respondent submits that the claimed Kshs. 60,000 is baseless, as the decretal amount is Kshs. 105,000, and under Schedule 7, the appropriate instruction fee should be Kshs. 30,000, so Kshs. 30,000 should be taxed off. 20.The respondent further objects to several specific items, arguing they are not provided for in Schedule 7 as follows;i.Drawing of pleadings (items 4 and 34, total Kshs. 10,000),ii.Perusals (items 16, 17, 22, 23, 28 and 29, total Kshs. 1,725),iii.Making fair copies (items 5 and 9, total Kshs. 975),iv.Court attendance (item 36, where the claimed Kshs. 3,600 exceeds the Schedule 7 fee of Kshs. 1,400, so Kshs. 2,100 should be taxed off),v.Service (items 7 and 35, where the advocate claims Kshs. 2,000 per service instead of the prescribed Kshs. 1,400, so Kshs. 600 per item, total Kshs. 1,200, should be taxed off),vi.Correspondence (items 8, 11, 13, 14, 19, 21, 30, 31, 32 and 33, total Kshs. 2,055),vii.Journey to court (items 6, 18, 25 and 27, total Kshs. 23,000, which the respondent also argues should have been supported by receipts under clause 10(ii)),viii.Phone calls (items 10, 15 and 24, total Kshs. 9,000), andix.Disbursements (items 41, 42, 43 and 44, total Kshs. 1,100, which lack receipt numbers). 21.In support of their position, the respondent cites Njuguna v Karanja & another [2024] KEHC 13033 (KLR), which reinforces that subordinate court costs are governed by Schedule VII and that detailed bills in subordinate courts are discouraged. 22.They also referred to Angelo Gitonga v Angelo Gitonga & another, where the court held that there is no provision for detailed bills of costs in subordinate courts. 23.The respondent concludes that the total sum to be taxed off is Kshs. 53,555 from the total bill of Kshs. 117,975, leaving Kshs. 64,420, and after adding 50% (Kshs. 32,210), the final taxed amount should be Kshs. 96,630. 24.They pray that the taxing officer strike out or disallow all items relating to drawing, perusals, copies, correspondence, journey, phone calls, and unsupported disbursements, and tax the bill accordingly. 25.The issues for determination in this Reference are as follows;i.Whether the Applicant has properly invoked the Court's jurisdiction under the Advocates (Remuneration) Order;ii.Whether the Taxing Officer erred in principle by disallowing or taxing off specific items in the Bill of Costs that were not provided for under Schedule 7;iii.Whether the Taxing Officer correctly applied the scale for instruction fees under Schedule 7; andiv.Whether the Taxing Officer should have applied the mandatory one-half increase for the Advocate-Client Bill of Costs. 26.The Applicant, having filed a Reference under Rule 11(2) of the Advocates (Remuneration) Order, challenges the decision of the Taxing Master delivered on 21 November 2024. 27.The substantive law governing this matter is the Advocates (Remuneration) Order, particularly Schedule 7 which applies to costs in subordinate courts. 28.The Applicant elected to file its Bill of Costs under Schedule 7, and by doing so, it is bound strictly by that schedule and cannot import items from other schedules, as this would amount to an impermissible mixing of taxation regimes. 29.The principle that a party cannot approbate and reprobate is well established, and a taxing officer has no jurisdiction to create items not provided for in the elected schedule. 30.The Respondent's submissions correctly identify that the Applicant cannot claim items such as drawing pleadings, perusals, fair copies, correspondence, and phone calls which are not provided for under Schedule 7. 31.Regarding the instruction fee, the Bill of Costs claims Kshs. 60,000. The decretal amount was Kshs. 105,000, and under the scale in Schedule 7 as amended by Legal Notice No. 45 of 2014, the appropriate instruction fee for a defended suit where the subject matter does not exceed Kshs. 100,000 is Kshs. 30,000 on the higher scale. 32.The Taxing Master did not err in principle by taxing this item at Kshs. 30,000. Under Schedule 7, where a matter is defended, the higher scale applies. 33.Similarly, for court attendances, Schedule 7 provides a specific fee of Kshs. 1,400, and the claimed Kshs. 3,600 was correctly taxed off. 34.The service fees claimed at Kshs. 2,000 per service exceeded the prescribed Kshs. 1,400, and the Taxing Master correctly disallowed the excess. 35.However, the Applicant contends that the Taxing Master erred by failing to apply the mandatory one-half increase under Schedule 7(B) for the Advocate-Client Bill of Costs. 36.This is a fundamental error of principle. The Advocates (Remuneration) Order, Schedule 7(B) provides that as between advocate and client, the fees prescribed in Part A shall be increased by one-half. 37.This includes the instruction fee and all other allowable items under the schedule. All taxable items under Part A of Schedule VII as between advocate and client are to be increased by one-half. 38.The Taxing Master failed to apply this mandatory increase, and the failure to do so amounts to an error of principle that warrants interference by this Court. 39.The process of taxing an advocate's fees is by applying fees prescribed in the schedule and then increasing it by 50%. The Taxing Master therefore erred in failing to apply the one-half increase. 40.With respect to disbursements, the Applicant claimed various items as disbursements without providing receipts. 41.The Taxing Master correctly disallowed items that were unsupported by receipts. An advocate must demonstrate that costs were incurred. 42.For items such as journey and telephone calls, the Applicant failed to demonstrate that these were properly incurred expenses under the schedule. 43.The Respondent's calculation that the total sum to be taxed off is Kshs. 53,555 from the total bill of Kshs. 117,975, leaving Kshs. 64,420, and after adding the one-half increase of Kshs. 32,210, the final taxed amount should be Kshs. 96,630, is correct. 44.However, to this amount, the Applicant is entitled to add the one-half increase for the Advocate-Client Bill of Costs. 45.The Court finds that the Taxing Master erred in failing to apply the one-half increase to the allowable items and therefore the Reference partially succeeds. 46.The total taxed costs shall be Kshs. 64,420 plus one-half thereof (Kshs. 32,210), making a total of Kshs. 96,630. 47.The Applicant is also entitled to interest at 14% per annum on the disbursements and costs from the expiration of one month from the delivery of the bill to the client. 48.Each party shall bear its own costs of this Reference. 49.Orders to issue accordingly. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 25TH DAY OF JUNE, 2026.A. N. ONGERIJUDGEIn the presence of:No appearance for the ApplicantNo appearance for the RespondentChrispin – Court Assistant