https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10855

Lily Palm Ltd v Ochoki & Ochoki Associates Advocates (Miscellaneous Application E010 of 2025) [2026] KEHC 10855 (KLR) (17 July 2026) (Ruling) Neutral citation: [2026] KEHC 10855 (KLR) Republic of Kenya In the High Court at Malindi Miscellaneous Application E010 of 2025 M Thande, J July 17, 2026 Between Lily Palm Limited Client and Ochoki & Ochoki Associates Advocates Advocate Ruling 1.By an application dated 6.2.25, the Client/Applicant (the Applicant) seeks the following orders against the Advocate/Respondent (the Advocate):a.­­­­­­Spent.b.That the entire taxation Ruling dated 21st January 2025 delivered by Hon. Makau, Deputy Registrar be set aside in toto.c.That the bill of costs dated 10th 2024 be struck out.d.That the costs of this Reference be provided for. 2.The Applicant is aggrieved by the ruling of 21.1.25 on taxation of the Advocate’s bill of costs and has filed this reference. The Applicant faulted the taxing officer for failing to consider the supporting evidence on record as filed by the Applicant. The Applicant termed the ruling of the taxing master as anemic, devoid of reasons for the taxation on the 133 items that were challenged. Further, that the taxing officer erred in principle in awarding full instruction fees and failing to consider the uncontested evidence on record proving that the instruction fees had already been fully paid. The Applicant thus urged that the same being erroneous be set aside. The Client claimed that the taxing officer further erred in her finding that items 4, 15, 25, 32, 37, 48, 57, 59, 68, 73, 91, 93, 97, 126, 127, & 131 are drawn to scale, contrary to the law, the facts and the evidence on record. The Applicant urged the setting aside of the quantification of costs for items 7, 8, 15, 24, 26, 37, 42, 47, 52, 63, 76, 85, 17, 34, 81, 38, 53, 64, 90, 92, 99, 100, 102, 103, 105, 107, 108, 110, 115, 116, 117, 118, 119, 120, 121, 124, 125, 130 & 132. 3.The Applicant states that the Advocate/Respondent represented it in Civil Suit No. 61 of 2018; Magheritta Rosseti v Lily Palm Limited and sought legal fees of Kshs. 350,000/= without sending a fee note. Further, that in spite paying the Advocate/Respondent paid legal fees and disbursements in the sum of Kshs. 1,562,630/=, he filed his bill of costs. The Applicant opposed the bill of costs and is aggrieved by the ruling of the taxing officer. 4.The Applicant contends that the taxing officer erred by improperly awarding costs of Kshs.379,360/= in the taxation ruling, contrary to the applicable law, facts of the case and evidence record. Additionally, that the Advocate’s bill of costs dated 10.9.24 offends Section 45 of the Advocates Act as there exists a remuneration agreement between it and the Advocate. As such the court lacked jurisdiction to tax the bill of costs. Further, that the Advocate did not send a demand for costs to the Applicant which ought to have been done prior to raising the bill of costs. It is the Applicant’s contention that the Advocate has been compensated beyond scale over and above the agreed fees as evidenced by its replying affidavit. As such, it is the Advocate/Respondent who ought to refund the excess amount. The Applicant urged that it is in the interest of justice and equity that the orders sought herein are granted. 5.The Advocate/Respondent opposed the Application vide a preliminary objection (PO) dated 28.2.25. The objections are that the Application offends Rule 11 of the Advocates (Remuneration) Order (ARO) and has been filed without first filing an objection and reasons being given by the taxing officer within 14 days; that the Application has been filed out of time without leave. 6.The Advocate/Respondent also filed a replying affidavit sworn on 29.2.25 by Jimmy Sausi in opposition to the Application. He reiterated that the objections in the PO. Further, that the Applicant is objecting to all the items before any written reasons have been given by the taxing officer; that the Advocate/Respondent successfully had the default judgment entered against the Applicant set aside; that the Applicant cited Section 45 of the Advocates Act but did not exhibit the alleged remuneration agreement referred to or provide details of the same; that the Kshs. 350,000/= the Applicant claims to have paid was for other matters. The Advocate/Respondent went on to giver further details of matters between them and other parties which in my view are not relevant to the matter herein. 7.The parameters for consideration of a preliminary objection are well settled. In the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, Sir Charles Newbold rendered himself thus:A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. 8.On his part, Law JA as he held:[A] Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the Jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. 9.A preliminary objection must be raised on a pure point of law. It cannot be raised if facts must be ascertained and what is sought must not be the exercise of judicial discretion. A preliminary objection should be argued on the assumption that all the facts pleaded by the other side are correct, and it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. 10.The objection in the PO herein is that the Application offends Rule 11 of the Advocates (Remuneration) Order (ARO) and has been filed without first filing an objection and reasons being given by the taxing officer within 14 days; that the Application has been filed out of time without leave. 11.Paragraph 11 of the Advocates Remuneration Order provides as follows: 1.Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects. 2.The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection. 3.Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal. 4.The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) far the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired. 12.A party seeking to challenge the decision of a taxing officer is required to, within 14 days thereof, give notice in writing to the taxing officer of the items of taxation to which he objects. 13.While Paragraph 11(1) is not couched in mandatory terms, it is noted that in the instant case, the Applicant was of the view that the ruling of the taxing master was anemic, devoid of reasons for the taxation on the 133 items that were challenged. This being the case, the Applicant being dissatisfied with the decision of the taxing officer ought to have within 14 days, given a written notice of the items to which it objects, whereupon the taxing officer would have recorded and forwarded the reasons to the Applicant, including whether or not she considered that there existed the alleged remuneration agreement. Thereafter, the Applicant would have filed the present Application within 14 days of receiving the reasons. This would have enabled the Court make an informed decision in the instant Application. 14.A similar view was expressed by Odunga, J. (as he then was) in Evans Thiga Gaturu, Advocate v Kenya Commercial Bank Limited [2012] KEHC 4274 (KLR). The learned Judge stated:It is therefore clear that the interpretations by the Court especially the High Court on this issue is far and varied. In my own view, where no reasons appear on the face of the decision of the taxing master, it is only prudent that such reasons be furnished in order for the Judge to make an informed decision as to whether or not the discretion of the taxing master was exercised on sound legal principles. (emphasis) 15.Without the reasons for the taxing officer’s decision, it is impossible for this Court to examine and determine whether the taxing officer committed an error in principle, in the exercise of her discretion during taxation. 16.In the end and for the reasons stated, I dismiss the Application dated 6.2.25 with costs to the Respondent. DATED, SIGNED AND DELIVERED IN MALINDI THIS 17TH DAY OF JULY 2026.................M. THANDEJUDGE