https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5271

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELCMISC NO. E095 OF 2023** **JOHN NGURE MBUGUA T/A** **NGURE MBUGUA & CO. ADVOCATES…..............ADVOCATE/APPLICANT** **VERSUS-** **MUMBI HOUSE PHARMACEUTICALS…...............CLIENT/RESPONDENT** **RULING** 1. Before this court for determination is the chamber summons dated 24th February 2026, filed by the advocate/applicant and it is expressed to be brought under **Sections 1A,1B** and **3A** of the **Civil Procedure Act** and **Paragraph 11(2)** of the **Advocates Remuneration Order** seeking the following orders:- 2. ***Spent.*** 3. ***That this honourable court be pleased to*** ***set aside the ruling of honourable Judith Omollo, Deputy Registrar, delivered on 10th February 2026, wherein she re-taxed the tax applicant advocate’s bill of costs dated 4th April, 2023 at Kshs.1,162,981.20/=, for failure to comply with the directions issued by Justice Oguttu Mboya in his ruling dated 3rd October, 2024.*** 4. ***That this honourable court do proceed to re-tax and conclusively determine the tax applicant advocate’s bill of costs dated 4th April, 2023 in accordance with the directions issued in the ruling of Justice Oguttu Mboya dated 3rd October, 2024.*** 5. ***That costs for this application be provided for.*** 6. The application is premised on the grounds on its face. It is further supported by the affidavit of John Ngure Mbugua, Advocate, on behalf of the advocate/applicant sworn on even date. The learned counsel deposed that he filed an advocate-client bill of costs dated 4th April 2023, which was taxed by Hon. Vincent Kiplagat at Kshs.3,912,750/- as per his ruling delivered on 6th March, 2024. Pursuant to the said taxation, a certificate of taxation was issued on 26th March 2024 in the sum of Kshs.3,912,750/=. He further deposed that the client/respondent filed a reference challenging the decision of the taxing officer and sought to have the bill of costs set aside and re-taxed before a different taxing officer. 7. The learned counsel further deposed that on 3rd October 2024, Justice Oguttu Mboya delivered a ruling, allowing the said reference and the court issued clear and express directions regarding the principles and procedure to be applied in the re-taxation of the said bill of costs. Thereafter, the advocate-client bill of costs dated 4th April, 2023 was re-taxed on 10th February, 2026 by Hon. Judith Omollo, at a sum of Kshs.1,162,981.20/= which determination is the subject of this reference. The advocate/applicant argues that the sum awarded in the said re-taxation was manifestly low, inconsistent with the directions of Justice Oguttu Mboya, and does not reflect the proper application of the principles of taxation as set out under the **Advocates Remuneration Order, 2014**. 8. The advocate/applicant deposed that in conducting the said re-taxation, the taxing officer revisited matters and issues already conclusively determined by this court, contrary to the express directions issued in the ruling of 3rd October 2024, resulting in a determination inconsistent with the court’s directions and defeating the purpose of the successful reference. In particular, in the re-taxation ruling, the taxing officer referred to a preliminary objection and replying affidavit in this matter, when in fact no such pleadings existed but only in another separate matter, demonstrating that the ruling was based on incorrect facts and mischaracterized the proceedings. 9. It was further deposed that this necessitates the intervention of this court to ensure that the bill of costs is properly re-taxed in accordance with the court’s directions to prevent irreparable financial and procedural prejudice. 10. The client/respondent filed written submissions dated 2nd July, 2026 in opposition to the instant application. The client/respondent argued that the sum awarded to the advocate/applicant cannot be said to be inordinately and disproportionately too low and/or lacking any objectivity and/or manifestly unjust to warrant this court’s interference. Further, that the taxing officer extrapolated the instruction fees allowable in respect of the bill of costs and did not err in law but proceeded with taxation and awarded an amount provided for under the law and that had factual and legal basis, arriving at the appropriate quantum with her decision being proper and guided by the right considerations. 11. The client/respondent submitted that there is no justifiable basis to re-assess the bill of costs for the third time since the previous re-assessment complied with the law. Further, that it is well settled that this court can only interfere with the decision of a taxing officer if it is established that an error of principle was made but should not do so in questions solely of quantum and relied on the following authorities:- 12. ***First American Bank of Kenya Limited vs Gulab P. Shah & 2 Others [2002] eKLR*** 13. ***Nyangito & Co. Advocates vs Doinyo Lessos Creameries Limited [2014] KEHC 5481 eKLR)*** 14. ***Kipkorir, Titoo & Kiara Advocates vs Deposit Protection Fund Board [2005] eKLR*** 15. The advocate/applicant filed written submissions dated 30th June, 2026 and submitted that at paragraph 64 of the ruling delivered on 3rd October 2024, this court remitted the bill of costs for re-taxation and issued clear, unequivocal and binding directions to guide the re-taxation exercise. Thus, the taxing officer was under a duty to faithfully implement those directions by assessing the instruction fees under **Schedule 1** of the **Advocates Remuneration Order** and calculating the same cumulatively on the basis of the value of the property as expressly directed by the learned Judge. 16. The learned counsel relied on the authority of the supreme court decision in **NGO v Eric Gitari & 5 Others, while citing Outa v Odoyo & 3 Others, SC Petition No. 6 of 2014; [2023] KESC 75 (KLR)**, where the court restated the principles governing the circumstances under which a court may interfere with a taxing officer’s decision and set aside a certificate of taxation, such as what the court did by that ruling. It is the advocate/applicant’s submission that the taxing officer fell into error by reopening an issue that had already been conclusively determined by the court. 17. The advocate/applicant’s submitted that although the general practice where an error of principle is established is to remit the bill of costs to the taxing officer for fresh taxation, the court retains the discretion to re-tax and conclusively determine a bill where the justice of the case so requires as was held in **First American Bank of Kenya Ltd v Shah & 2 others (Civil Suit 2255 of 2000) [2002] KEHC 1277 (KLR) (Civ) (25 April 2002) (Ruling)** and invites this court to exercise that discretion, stating that it is warranted in this case. 18. I have considered the chamber summons and the written submissions filed by both parties. The issue for determination is *whether the taxing officer erred in taxing the advocate-client bill of costs.*I have perused the record in this matter and the instant application arises from the advocate-client bill of costs dated 4th April 2023, which was taxed by Hon. Vincent Kiplagat at Kshs 3,912,750/=, but the same was challenged by the client/respondent by way of reference. 19. This court delivered a ruling dated 3rd October 2024, in which Justice Oguttu Mboya directed re-taxation of the same, holding that the client/respondent having been retained and engaged in a transaction pertaining to purchase of an immovable property, the advocate/applicant was required to charge instruction fees in accordance with **Schedule 1** of the **Advocates Remuneration Order**, which concerns scale fees on sale and purchases affecting land registered in any registry, as per paragraph 38 of his ruling. 20. While the general principle is that if a judge on reference finds that there was an error of principle made by the taxing officer, the court would ordinarily remit the same back for re-taxation. However, the court retains the discretion to re-tax the same by itself. In the case of **First American Bank of Kenya Limited vs Gulab P. Shah & & 2 others [2002] 1 EA 64** the court held as hereunder:- ***“I have asked myself whether I should remit the bill back to the taxing officer with directions that she should determine the instruction fees and then consider not increasing it as there are no factors to warrant an increase. I am convinced in my mind that that would be a waste of judicial time in the circumstances of this case. It would also saddle the parties with further unnecessary costs……. I think the just course of action in this matter is for this court to exercise its discretion in a reference on taxation to determine the matter with some finality.”*** 1. Similarly, it was held by the court of appeal in **Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR,** thus:- ***“And if a judge on reference from a taxing officer finds that the taxing officer has committed an error of principle, the general practice is to remit the question of quantum for the decision of taxing officer (see- D’Souza v Ferrao [1960] EA 602). The judge has however a discretion to deal with the matter himself if the justice of the case so requires (see Devhi Dhanji v Kanji Naran Patel (No. 2) (supra).”*** 1. Since the matter has already been taxed twice and has come back to this court, I will exercise my discretion to re-tax the same in a bid to facilitate the expeditious and final disposal of the matter. The advocate/applicant represented the client/respondent in a transaction on the property known as LR 209/4917/4 valued at Kshs.300,000,000/=. In accordance with the ruling of this court delivered on 3rd October 2024 particularly in paragraphs 46-54, and as per **Schedule 1** of the **Advocates Remuneration Order 2014**, the taxation of the instruction fees was meant to be as follows:- 2. 5, 000, 000 x 2% = 100,000 3. 95, 000, 000 x 1.5% = 1,425,000 4. 150, 000, 000 x 1.25%=1,875,000 5. 50, 000, 000 x 1% = 500,000 **TOTAL****= 3,900,000/=** 1. Since the same was a land transaction and not a case filed in Court, the same will not be raised by half. This court thus sets aside the ruling of Hon. deputy registrar, delivered on 10th February, 2026 and taxes the advocate-client instruction fees at **Ksh.3,900,000/=.** I make no orders as to costs. The orders of this ruling shall apply to ELCMISC no. E096 of 2023. It is so ordered. **DATED, SIGNED & DELIVERED VIRTUALLY THIS** **12TH DAY OF AUGUST, 2026.** **HON. MBOGO C.G.** **JUDGE** **12/08/2026.** ***In the presence of:-*** *Mr. Benson Agunga – Court assistant* *Ms. Mkamburi for the Tax/Applicant/Advocate* *Mr. Antony Gikaria for the Respondent*