https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2075

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NYERI** **MISC. APP. NO. E003 OF 2025** **MM KIMULI & CO. ADVOCATES ………………………………APPLICANT** **VERSUS** **BRINKS SECURITY SERVICES LTD………………………...RESPONDENT** **RULING** 1. Before this Court for determination is a Reference challenging the taxation of the Advocate-Client Bill of Costs by Hon. Anastacia Ndung'u (Taxing Officer), who, in a Ruling delivered on 24th September 2025, taxed the Bill of Costs at Kshs. 199,915/=. 2. Dissatisfied with the Taxing Officer's decision, the Applicant/Advocate lodged the present Reference by way of a Chamber Summons dated 19th January 2026, seeking the following orders: 3. ***THAT this Honourable Court be pleased to set aside the taxing master’s findings and assessment of items 3,4,10,11,20,50,51,52,53,54,55,56,57,58 and 59 of the Advocate/Client Bill of Costs dated 17th February 2025 as contained in the Ruling delivered on 24th September 2025 and this court be pleased to assess the fees in accordance with the law.*** 4. ***THAT this Honourable Court be pleased to correct the conclusive total award arrived at by the taxing master by way of recalculation on the increase by 50% and the addition of VAT at 16%.*** 5. ***THAT the costs of this application be provided for.*** 6. The Reference is anchored on the grounds set out on its face and the Supporting Affidavit sworn on 19th January 2026 by ***Morris Kimuli***, the Applicant/Advocate herein. Mr. Kimuli deposes that the learned Taxing Officer misdirected herself in law and principle in the taxation of items 3,4,10,11,20,50,51,52,53,54,55,56,57,58 and 59of the Advocate-Client Bill of Costs. 7. The Applicant further avers that the Taxing Officer fell into error in computing the 50% advocate-client increase and the addition of the Value Added Tax (VAT) at the rate of 16%, thereby arriving at an erroneous tabulation of the amount awarded. 8. Mr. Kimuli further contends that the Taxing Officer misdirected herself when she found that he had billed for court attendances based on the higher scale, when that was not the case. According to him, he had applied the ordinary scale in drawing the entire Bill. 9. It is Mr. Kimuli's position that the Bill of Costs ought to be re-taxed in order to arrive at the correct remuneration and to further recalculate the increase by 50% and the addition of VAT at 16% so as to get the correct award. 10. The Respondent opposed the application through the Replying Affidavit of ***Josephine Nduku Musumbi*** dated 11th May 2026. Ms. Musumbi avers that the Taxing Masters' Ruling is proper, detailed, well-reasoned, and should be upheld in its entirety. 11. She further states that the learned Taxing Master correctly applied Schedule VI 1(b) of the Advocates Remuneration Order 2009 and allowed instruction fees of Kshs 75,000/- after taking into account the pleadings, judgment, the nature of the matter and all relevant circumstances. 12. Ms. Musumbi further avers that items 3 and 4 (instructions and getting up fees for Counter-claim were rightly disallowed because the same was drawn together with the Memorandum of Response and was not a separate and distinct pleading. 13. She further deposes that items 10 and 11 were correctly declined on grounds of duplication and that items 20 and 35 were reasonably taxed down to Kshs 500/-. 14. Ms. Musumbi further avers that the Taxing Master correctly applied the lower scale pursuant to Rule 50 of the order, there being no court order under paragraph 50A directing taxation on the higher scale. She further avers that the Taxing Master correctly observed that most attendances were short mentions or hearings, adding that some dates had no court sitting and others no attendance by the Respondent. 15. According to Ms. Musumbi, the Taxing Master properly reduced most court attendances to Kshs 1,100/- each, which was fair and justified. That further, the 50% increase on the taxed instruction fees and VAT at 16% were arithmetically correct. 16. It is Ms. Musumbi’s view that the Applicant has failed to demonstrate any error of principle or law that would warrant this court interfering with the taxing master’s decision. **Submissions** 1. Pursuant to the Court's directions, the Chamber Summons was canvassed by way of written submissions. Both parties duly filed their respective submissions, which the Court has considered. **Analysis and Determination** 1. Having considered the pleadings and the rival submissions, the central issue falling for determination is whether the learned Taxing Officer misdirected herself in law or principle in the taxation of the Advocate-Client Bill of Costs, thereby arriving at an erroneous assessment. 2. The principles upon which a court may interfere with the decision of a Taxing Officer are now well settled. In ***Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR***, the Court stated 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. In Arthur v Nyeri Electricity Undertaking [1961] EA 492, the predecessor of this Court observed that where there has been an error in principle, the court will interfere; but questions solely of quantum are******regarded as matters with which taxing officers are******particularly fitted to deal, and the court will interfere only in exceptional cases.”*** 1. It therefore follows that the Court will not lightly interfere with the exercise of a Taxing Officer's discretion. Such intervention is only warranted where it is demonstrated that the Taxing Officer acted on a wrong principle of law, took into account irrelevant considerations, failed to consider relevant factors, or otherwise misdirected herself in the assessment of the costs. 2. On what amounts to an error of principle, the Court in ***Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board (supra)*** observed that such an error may arise where the costs allowed are so manifestly excessive or so inordinately low as to justify the inference that the Taxing Officer proceeded on an erroneous principle. The Court further noted that an error of principle may also occur where undue emphasis is placed on factors such as the difficulty, importance or complexity of the matter, or where the Taxing Officer fails to apply the prescribed principles or formula governing the assessment of costs, including the applicable Schedule under the Advocates Remuneration Order, or otherwise omits to take into account relevant circumstances of the case. 3. From the Chamber Summons, it is evident that the Applicant challenges the taxation of items 3,4,10,11,20,50,51,52,53,54,55,56,57,58 and 59of the Advocate-Client Bill of Costs. 4. Items 3 and 4 relate to the instruction fee in respect of the Counter-claim and the consequential getting-up fee. 5. The Applicant contends that the learned Taxing Officer erred in finding that there was no justification for the instruction fee claimed in respect of the Counter-claim. 6. According to the Applicant, a counterclaim constitutes an independent cause of action, complete with its own parties and prayers, and is therefore equivalent to a separate suit. It is further submitted by the Applicant that in preparing for the hearing of the main suit, an advocate simultaneously prepares to prosecute or defend the counterclaim, upon which the Court is required to make a distinct determination. On that basis, the Applicant argues that the Counterclaim is not tied to the main claim and therefore properly attracts separate instruction and getting-up fees. 7. The Respondent takes a contrary view, submitting that the Counter-claim was neither instituted nor prosecuted as a separate suit but was incorporated into the Statement of Response and heard contemporaneously with the main claim. It is therefore contended that allowing separate instruction and getting-up fees in the circumstances would amount to an impermissible duplication of costs. 8. There is no dispute that in law a Counter-claim is in the nature of a cross-suit, proceeding alongside the principal Claim. As such, it ordinarily necessitates the preparation of separate pleadings, legal research and litigation strategy. 9. In determining this issue, the Court is persuaded by the reasoning in ***Kagwimi Kangethe & Company Advocates v Nairobi Mamba Village Limited [2015] KEHC 8276 (KLR),*** wherein the Court, while citing ***Amon v Bobbet (1889) 22 Q.B.D. 543,*** stated as follows: ***“That for purposes of taxation the claim and Counter-claim must be treated as independent action; that the costs of the Counter- claim followed the ordinary rule as to costs and that the Plaintiff was entitled to have the costs of his defence to counterclaim taxed on the High Court scale.”*** 1. The Court further adopts the reasoning in ***Kenyariri & Associates Advocates v Salama Beach Hotel Ltd & 4 Others [2014] KEELC 214 (KLR),*** where the Court held as follows: – ***“57. A Counter-claim contains assertions that a defendant could have made by starting a lawsuit if the Plaintiff had not already begun an action. It is governed by almost the same rules that regulate a claim made by a Plaintiff except that it is a part of the answer that the Defendant files in response to the Plaintiff’s claim. A*** ***Counter claim is therefore in all respects a suit by the Defendant.”*** 1. The foregoing authorities affirm the settled legal position that a Counter-claim constitutes a distinct and independent cause of action. Consequently, it is not merely incidental to the main suit but attracts its own instruction fees under the Advocates Remuneration Order. 2. In the premises, the Court finds that the learned Taxing Officer fell into error in declining to allow instruction fees in respect of the Counter-claim. 3. Items 10 and 11 of the Bill of Costs relate to the drawing of the Counterclaim and the preparation of copies thereof. In her Ruling, the Taxing Officer taxed off both items on the ground that the Counter-claim was drawn together with the Response and that the photocopying charges encompassed both documents. 4. On this issue, the Appellant has submitted that the charges for the drawing of the Counter-claim and making copies of it are merited as the Counter-claim ought to be treated independently, together with every charge that comes alongside it. 5. On the other hand, the Respondent has argued that the Counter-claim was not drawn or prosecuted as a separate and distinct suit but was incorporated into the Statement of Response and heard together with the main claim. 6. Having found elsewhere in this Ruling that a Counter-claim constitutes a distinct and independent cause of action, the Court likewise finds that the drawing of the Counter-claim and the preparation of copies thereof attract separate charges under Schedule 6 of the Advocates Remuneration Order. 7. To this end, the Court finds that the Taxing Officer erred in principle in taxing off Items 10 and 11 of the Bill of Costs. 8. Items 20 and 50 of the Bill of Costs relate to service by electronic mail, namely service of a letter upon Warutere Advocates and service of the Advocate-Client Bill of Costs upon the Respondent. In respect of each item, the Applicant claimed Kshs. 1,400/=, but the learned Taxing Officer taxed both items at Kshs. 500/=. 9. The Applicant submits that the Taxing Officer erred in reducing the charges to Kshs. 500/= on the basis that the Advocates Remuneration Order contains no provision prescribing a fee for service effected through electronic mail. It is further argued that, in arriving at the figure of Kshs. 500/=, the Taxing Officer departed from the provisions of ***paragraph 9(a) of Schedule 6 of the Advocates Remuneration Order.*** 10. The Respondent, on the other hand, maintains that the amount allowed by the Taxing Officer was reasonable, bearing in mind the minimal effort and expense ordinarily involved in effecting service by electronic mail. 11. It is common ground that the Advocates Remuneration Order does not expressly prescribe a fee for service effected electronically, notwithstanding that service by electronic mail is now a prescribed mode of service under the Civil Procedure Rules and the Employment and Labour Relations Court (Procedure) Rules, 2024. 12. It is equally noteworthy that ***paragraph 9(a) of Schedule 6 to the Advocates Remuneration Order*** prescribes a fee of Kshs. 1,400/= for service effected within a radius of three (3) kilometres from the Court or the Court’s registry. 13. In the present case, service was effected electronically rather than through personal service. Consequently, the distance-based criterion contemplated under ***paragraph 9(a) of Schedule 6*** was inapplicable. 14. In those circumstances, the Court is not persuaded that the learned Taxing Officer committed any error of principle in assessing items 20 and 50 of the Bill of Costs at Kshs. 500/=. 15. As I see it, the assessment represented an exercise of the Taxing Officer's discretion in the absence of a prescribed fee for electronic service, and no sufficient basis has been demonstrated to warrant this Court's interference. 16. The Applicant has further disputed the taxation of items 51,52,53,54,55,56,57,58 and 59 of the Advocate-Client Bill of Costs. Under those items, the Applicant claimed Kshs. 2,300/= for each of nine (9) court attendances relating to mentions, hearings and the delivery of judgment. The learned Taxing Officer reduced each item to Kshs. 1,100/= on the basis that the attendances could not have exceeded half an hour. 17. The Applicant contends that the said items were drawn strictly in accordance with the ordinary scale prescribed under the Advocates Remuneration Order, and that the sum of Kshs. 2,300/= represented the prescribed fee for an attendance of one hour. It is further submitted that court attendances, whether for mention, hearing or delivery of judgment, do not ordinarily conclude within half an hour. 18. The Respondent supports the Taxing Officer's assessment, arguing that the reduction was both proper and lawful, and that the Taxing Officer correctly applied the lower scale provided for under the Advocates Remuneration Order. 19. It is not disputed that the Applicant taxed the impugned items on the basis of the ordinary scale applicable to attendances of one hour. 20. It is, however, important to appreciate that there is no universal duration for court attendances. The length of any attendance will invariably depend on the circumstances of the particular case, including the nature of the matter before the Court, the length of the day's cause list, whether substantive arguments were addressed, and whether the matter was one among several listed for mention, hearing, or determination. 21. In the present case, the learned Taxing Officer reduced the items on the generalised observation that the court attendances could not have lasted for more than half an hour. With tremendous respect, that conclusion was founded on a general assumption rather than on the material before the Court. This is because the record does not disclose the duration of any of the nine (9) attendances, nor is there any objective basis upon which it could be concluded that each attendance fell within the lower time bracket of half an hour or less. 22. In the circumstances, and bearing in mind that the Applicant claimed the impugned items under the ordinary one-hour scale, the Court is satisfied that the learned Taxing Officer's reduction was based on a generalized assumption unsupported by the record. 23. Accordingly, the decision was therefore informed by an irrelevant consideration and amounted to an error of principle. 24. The Applicant further faults the learned Taxing Officer for applying the 50% Advocate-Client increase solely to the instruction fee under Item 1, instead of applying the increase to all the taxable items falling under Part A of Schedule 6 to the Advocates Remuneration Order. 25. According to the Applicant, once the aggregate of the taxable items is enhanced by 50%, VAT at 16% ought to be computed on the resultant sum before the allowable disbursements are added to arrive at the final amount payable. 26. A perusal of the taxation reveals that the learned Taxing Officer applied the 50% Advocate-Client increase only to the instruction fee, leaving out the other items. 27. Schedule 6 Part B of the Advocates Remuneration Order provides that, as between Advocate and Client, the fees prescribed under Part A are to be increased by 50%. 28. It is noteworthy that Part A encompasses all the taxable items under the Schedule, including instruction fees, getting-up fees where applicable, attendances, drawing and perusal of documents, service, and other chargeable items provided for therein. 29. In the premises, the Court is persuaded that the learned Taxing Officer misdirected herself in principle by confining the 50% increase to the instruction fee alone instead of applying it to the taxable fees prescribed under Part A of Schedule 6, as contemplated by the Advocates Remuneration Order. 30. In the final analysis, the Court finds it appropriate to remit the Bill of Costs dated 17th February 2025 for re-taxation. 31. Accordingly, the Chamber Summons dated 19th January 2026 is allowed on the following terms: 32. Top of Form 33. **The Taxation Ruling with respect to the Bill of Costs dated 24th September 2025 is set aside and remitted for taxation by a different Taxing Officer.** 34. **There will be no order as to costs.** **DATED, SIGNED** and **DELIVERED** at **NYERI** this **16th** dayof **July**, 2026. ……………………………… **STELLA RUTTO** **JUDGE** **In the presence of**: Ms. Mutua for the Applicant No appearance for the Respondent Ndati Court Assistant **ORDER** In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with **Order 21 Rule 1** of **the Civil Procedure Rules**, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court had been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of **Section 1B** of the **Civil Procedure Act (Chapter 21 of the Laws of Kenya)** which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. **STELLA RUTTO** **JUDGE**