https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11702

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CRIMINAL DIVISION** **MISC. APPLICATION NO. E203 OF 2020** **IN THE MATTER OF TAXATION OF ADVOCATE -CLIENT BILL OF COSTS** **BETWEEN** **MBUGUA NG’ANG’A & CO. ADVOCATES ---------------APPLICANT** **VERSUS** **CAROLINE GACHERI -----------------------------------------RESPONDENT** **RULING** 1. The applicant seeks to have this court review the decision of the taxing master. **APPLICANT’S WRITTEN SUBMISSIONS** 1. The Applicant filed a reference dated 2nd June 2023 challenging the ruling of the taxing officer delivered on 22nd March 2023 in respect of the Applicant’s Advocate–Client Bill of Costs dated 7th August 2020. 2. The Applicant contested the decision of the taxing officer on the basis that the Bill of Costs was taxed under the wrong schedule of the Advocates Remuneration Order, 2014 (ARO). 3. The Applicant argued that although the taxing officer correctly found that there was no agreement for legal fees and proceeded to tax the Bill, the taxing officer erred by applying Schedule 7 instead of Schedule 5 of the Advocates Remuneration Order. **Applicable Schedule under the Advocates Remuneration Order** 1. The Applicant submitted that the Bill of Costs arose from **Criminal Case No. 373 of 2015**, and therefore taxation was governed by paragraph 49(A) of the ARO, which provides: *"Costs in criminal cases, whether in the High Court or Subordinate Courts, if not agreed or ordered, shall be taxed as between the advocate and client under Schedule 5"* 1. The Applicant argued that the provision is couched in mandatory terms and the taxing officer had no discretion to apply any other schedule. Having found that there was no agreement on fees, the taxing officer ought to have taxed the Bill under Schedule 5. 2. The Applicant relies on **Havi & Company Advocates v Purma Holdings Limited & 2 others (Miscellaneous Civil Cause E032 of 2023) [2024] KEHC 3690 (KLR) (Anti-Corruption and Economic Crimes) (18 April 2024) (Ruling)**, where the Court stated: *"In regard to costs in criminal cases, paragraph 49A of the Advocates Remuneration Order provides that: - I "Costs in criminal cases, whether in the High Court or subordinate courts, if not agreed or ordered, shall be taxed as between advocate and client under Schedule 5." Since there was no agreement between the parties the fees in this case are to be assessed under Schedule 5 Part II of the Advocates Remuneration Order........."* 1. The Applicant therefore submitted that the taxing officer’s reliance on paragraph 22 of the ARO and taxation under Schedule 7 was an error of law, and the entire taxation decision ought to be set aside. **Instruction Fees** 1. The Applicant further challenged the taxing officer’s determination of instruction fees, arguing that the taxing officer wrongly relied on the estimated value of property allegedly destroyed in determining the instruction fee. 2. The Applicant submitted that under Schedule 5, instruction fees in criminal matters are determined by considering the care and labour required, the number and length of documents perused, the nature and importance of the matter, the value of the subject matter, interests of the parties, complexity of the matter, and all other circumstances of the case. 3. The Applicant argued that the taxing officer failed to consider the seriousness of the criminal charges faced by the Respondent, the possible penalties, the length of the trial, the preparation involved, and the role played by the Applicant in securing the Respondent’s acquittal. 4. The Applicant contended that the instruction fee of Kshs. 30,000/= awarded by the taxing officer was manifestly low and resulted from applying the wrong principles. **Role of the Advocate and Complexity of the Matter** 1. The Applicant faulted the taxing officer for minimizing the work undertaken in representing the Respondent and for describing the matter as an ordinary criminal case that did not require additional care or labour. 2. The Applicant submitted that such reasoning was erroneous because the Advocate successfully defended the Respondent against charges including malicious destruction of property, which carried a potential sentence of up to five years imprisonment. 3. The Applicant maintained that the taxing officer failed to appreciate the significance of securing the Respondent’s acquittal after the matter proceeded to full hearing and the Respondent had been placed on her defence. 4. The Applicant argued that the failure to apply Schedule 5 resulted in an unfair and prejudicial taxation decision. 5. The Applicant urged the Court to set aside the taxation decision to the extent that the Bill of Costs was taxed under Schedule 7 instead of Schedule 5. 6. The Applicant further urged this court to have the Bill of Costs dated 7th August 2020 remitted to a different taxing officer for re-taxation under the proper schedule and with appropriate directions. 7. Alternatively, the Applicant requested that this Court re-tax the Bill of Costs itself, as was done in **Havi & Company Advocates v Purma Holdings Limited & 2 others (Miscellaneous Civil Cause E032 of 2023) [2024] KEHC 3690 (KLR) (Anti-Corruption and Economic Crimes) (18 April 2024) (Ruling)**. 8. In the event that the Court electes to re-tax the Bill, the Applicant urged that the same be taxed as drawn. **RESPONDENT’S SUBMISSIONS** **Introduction and Background** 1. The Respondent submitted in support of the decision of the taxing officer and the reasons delivered by the Taxing Officer in respect of the Applicant’s Advocate–Client Bill of Costs dated 7th August 2020 arising from **Milimani Chief Magistrates’ Court Criminal Case No. 373 of 2015**. 2. The matter arose from criminal proceedings where the Respondent, together with another accused person, faced charges of creating a disturbance in a manner likely to cause a breach of the peace contrary to section 95(1)(b) of the Penal Code and malicious damage to property contrary to section 339(1) of the Penal Code. The value of the damaged property was stated to be Kshs. 165,000/=. 3. The Respondent instructed the Applicant to represent her throughout the criminal proceedings. Upon conclusion of the matter, the Applicant filed an Advocate–Client Bill of Costs dated 7th August 2020 claiming Kshs. 698,130/=. 4. The Respondent opposed the Bill through a Replying Affidavit dated 6th January 2023. The Bill proceeded to taxation before the Taxing Officer, who taxed the same at Kshs. 107,895/= after considering the circumstances of the matter. 5. The Respondent submitted that the Taxing Officer exercised discretion properly, applied the relevant legal principles, and there exists no basis for interference by the Court. **Issues for Determination** 1. The Respondent identifies the issues for determination as: **i).** Whether the Taxing Officer exercised discretion properly, lawfully, and in accordance with established principles when assessing the instruction fees and taxing the Bill at Kshs. 107,895/=. **ii).** Whether the Taxing Officer correctly applied Schedule 7 of the Advocates Remuneration Order in taxation of the Advocate–Client Bill of Costs. **Interference with Taxing Officer’s Discretion** 1. The Respondent submitted that the Court should only interfere with a taxing officer’s decision where there is proof of an error of principle or where the award is so manifestly excessive or low as to result in injustice. 2. The respondent relied on **Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd & Another [1972] E.A. 162**, where the Court held: *"The court will only interfere with the decision of a taxing officer if 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."* 1. The Respondent further relied on **Kenya Airports Authority v Otieno Ragot and Company Advocates (Petition E011 of 2023) [2024] KESC 44 (KLR) (2 August 2024) (Judgment)**, where the Supreme Court stated: *"The overall objective [of the Advocates Remuneration Order] is to prevent exploitation of parties to a suit/transaction with regard to remuneration of advocates and compensation of costs or expenses incurred by a successful party as well as maintain the standards of the legal profession. Differently put, it is to ensure that fees/costs paid to an advocate and a successful party are reasonable. Of importance, is that what amounts to reasonable costs can only be determined on a case-by-case basis."* 1. The Respondent submitted that taxation is not a mechanical exercise but requires the Taxing Officer to balance fair remuneration for advocates with protection against excessive claims. 2. The Respondent relied on **Premchand Raichand Ltd vs. Quarry Services of East Africa Ltd. (No. 3) [1972] EA 162**, where the Court outlined the guiding principles in taxation, including that costs should not restrict access to justice, successful litigants should be fairly compensated, advocates should receive reasonable remuneration, and consistency should be maintained in taxation awards. 3. The Respondent submitted that instruction fees must reflect the actual work done and the circumstances of each matter. The Applicant’s claim of Kshs. 500,000/= as instruction fees was excessive considering the nature of the criminal charges, the value of the damaged property, and the work involved. 4. The Respondent argued that the Taxing Officer properly exercised discretion by declining to adopt the Applicant’s proposed figure and instead awarding a reasonable amount reflective of the matter’s complexity and circumstances. 5. The Respondent maintained that the Taxing Officer considered the pleadings, issues raised, and work undertaken before arriving at a fair and proportionate figure. **Application of Schedule 7 of the Advocates Remuneration Order** 1. The Respondent challenged the Applicant’s contention that Schedule 5 ought to have applied. 2. The Respondent submits that Schedule 5 does not apply to litigation or court proceedings but relates to non-contentious matters such as conveyancing, leases, charges, commercial agreements, and corporate documentation. 3. The Respondent argues that Schedule 7 governs litigation matters by providing scales for instruction fees, attendances, mentions, and hearing days. 4. Accordingly, the Respondent submits that the Taxing Officer was correct in applying Schedule 7 when assessing the Advocate–Client Bill of Costs. 5. The Respondent argued that the Taxing Officer’s reasoning was clear, supported by the law, and within the officer’s discretion. The Taxing Officer properly analysed each item in the Bill, disallowed unsupported claims, and arrived at the net taxation figure of Kshs. 107,895/=. 6. The Respondent submitted that no error of principle or manifest injustice has been demonstrated to warrant interference with the decision. **ANALYSIS AND DETERMINATION** 1. The applicant challenges the exercise of judicial discretion by the learned tax master of the court in taxing the advocate client bill of costs. 2. For a litigant to succeed in overturning a decision arrived at by the taxing master of the court exercising judicial discretion, the party must demonstrate that the taxing master of the court erred in applying the principles that govern taxation of advocate-client bill of costs and by doing so occasioned a failure of justice thus justifying the interference with the decision of the tax master. 3. The circumstances in which the High Court may interfere with the decision of a taxing master were set out by the Court of Appeal in the cause of [***Kipkorir Titoo & Kiara Advocates v Deposit Protection Fund Board***](https://new.kenyalaw.org/akn/ke/judgment/keca/2005/325)**[2005] eKLR** as follows:-“On a reference to a judge from the taxation by the Taxing Officer, the judge will not normally interfere with the exercise of discretion by the taxing officer unless the taxing officer, erred in principle in assessing the costs. 4. In ***Arthur v Nyeri Electricity Undertaking* [1961] EA 497**, the predecessor of this Court said at page 492 paragraph1.“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 interfere only in exceptional cases.” 5. The principles to be applied when assessing instruction fees in a suit are well settled. In [***Joreth Ltd v Kigano & Associates***](https://new.kenyalaw.org/akn/ke/judgment/keca/2002/153)**[2002] eKLR** the Court of Appeal outlined the principle as follows:-We would at this stage point out that the value of the subject matter of a suit for the purpose of taxation of a bill of costs ought to be determined from the pleadings, judgment or settlement (if such be the case) but if the same is not ascertainable, the taxing officer is entitled to use his discretion to assess such instruction fee as he considers just, taking into account, among other matters, the nature and importance of the cause or matter, the interest of the parties, the general conduct of the proceedings, any direction by the trial judge and all other relevant circumstances. 6. This court having considered the submissions by counsel for the parties has come to the conclusion that the applicant has not demonstrated that the taxing master of the court improperly exercised his discretion or misapplied the principle governing the taxation of an advocate client bill of costs. 7. It is the view of this court that the dispute by the applicant is more of the quantum of fees payable to them by the respondents a matter that the law entrusts to the taxing master of the court and not this court. This court finds no error in the assessment done by the master. 8. Taking into account the subject matter of the case for which the applicant had been instructed, this court finds that the amount arrived at by the taxing master was reasonable in the circumstances and this court shall therefore not interfere with the same. 9. The reference is therefore dismissed. 10. It is so ordered. **DATED, SIGNED and DELIVERED VIRTUALLY at NAIROBI this 2nd day of JULY 2026**. **A. M. MUTETI** **JUDGE** **In the presence of:** Court Assistant: Habiba Orenge for Applicant Kojienda h/b Swaka for Respondent