https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11880

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MILIMANI** **MILIMANI COMMERCIAL COURTS** **CIVIL DIVISION** **MISC. APPL. NO. E304 OF 2026** **MNM ADVOCATES LLP** .................................... **ADVOCATE/APPLICANT** -**VERSUS-** **MELCHIZEDEK HOSPITAL LIMITED** ........................ **CLIENT/RESPONDENT** **ARISING FROM** **REPUBLIC OF KENYA** **IN THE KENYA MEDICAL PRACTITIONERS AND DENTISTS COUNCIL** **DC CASE NO. 1 OF 2020** **KELVINE MATHIKO** (Suing on behalf of ROSE AWUOR) .................................... **CLAIMANT** **-VERSUS-** **MELCHIZEDEK HOSPITAL LIMITED** ..................................... **RESPONDENT** **ADVOCATE/CLIENT BILL OF COSTS** **RULING AND REASONS FOR TAXATION ON THE APPLICANT’S ADVOCATE S/CLIENTS BILL OF COSTS DATED 9TH MARCH 2025** The Applicant filed an Advocate – Client Bill of Costs on 10th March ,2026 urging the Taxing Officer to tax the same at **Kshs.133,100.00** The Applicant filed an Advocate-Client Bill of Costs dated 9thMarch ,2026 urging the Taxing Officer to tax the same at **Kshs.225,100.00** The Bill of Costs relates to legal fees for representing the Respondent in **SCCC NO. E2971 OF 2022** which the Applicant herein represented the Respondent. The Respondent in opposition to the Applicant’s Bill of Costs filed Written Submissions dated 16th July ,2026 The Client/Respondent opposes the Advocate/Client Bill of Costs dated 4th February 2026 on the ground that several items have been drawn contrary to Schedule 7 of the Advocates (Remuneration) Order and do not accurately reflect the nature of the proceedings before the Small Claims Court. While acknowledging that the Advocate was duly instructed to represent the Client in the subordinate court, the Respondent contends that the Bill contains excessive and unsupported claims which should be taxed in accordance with the applicable statutory scale. On instruction fees, the Respondent submits that the Taxing Officer should assess the fee strictly in line with Schedule 7, taking into account the value of the subject matter and the applicable principles governing taxation as set out in established case law. It argues that only a reasonable instruction fee, commensurate with the nature and value of the matter, should be allowed. With respect to filing, service and travelling expenses, the Respondent argues that the Advocate has improperly combined these claims into lump-sum amounts without itemising the charges or providing documentary proof such as receipts, vouchers or stamped pleadings. It submits that only expenses that have been specifically proved and are recoverable under the Advocates (Remuneration) Order should be allowed. Regarding court attendance fees, the Respondent maintains that attendance fees are only recoverable where the court actually sat and substantive proceedings took place. It therefore submits that the attendance on 31st May 2022 is properly chargeable, while the attendance on 23rd June 2022 should not attract any fee because the court did not sit due to the illness of the presiding magistrate. As for the attendances on 18th July 2022 and 21st July 2022, the Respondent contends that only the prescribed attendance fee of Kshs. 1,400.00 is recoverable since the parties merely informed the court that they were negotiating a settlement and later appeared only to record a consent, with no substantive hearing taking place. The Respondent urges the Taxing Officer to tax the Advocate/Client Bill of Costs strictly in accordance with Schedule 7 of the Advocates (Remuneration) Order, disallow or reduce the impugned items that are excessive or unsupported by the court record and documentary evidence, and allow only those fees and disbursements that have been properly proved and are lawfully chargeable. **The Law** I have carefully considered the Bill of Costs filed by the Applicant herein. This is a matter the Applicant was instructed in the year 2021 and hence the applicable **Advocates Remuneration (Amendment) Order** is that of **2014.** **Item No.1 – Instruction Fees** The Applicant seeks **Kshs.50,000.00**. The nature of the proceedings before the Kenya Medical Practitioners and Dentists council where the Applicant defended the respondent in a claim where the complainant filed a claim for medical negligence ,claiming liability for the respondent where the victim suffered maternal death while undertaking treatment .The applicable law therefore is Schedule 11(9) of the Advocates Remuneration (Amendment )Order 2014 . The Taxing officer has discretion to increase this figure taking into account a number of factors including the following:- 1. ***The nature and importance of the cause or matter.*** 2. ***The amount or value of the subject matter.*** 3. ***The interest of the parties.*** 4. ***The general conduct of the parties.*** 5. ***The complexity of the issues raised and novel points of law.*** 6. ***The time, research and skill expended in the brief.*** 7. ***The volume of documents involved.*** The discretion granted to the taxing officer must also be exercised judiciously and also subject to the principle of reasonableness. Both parties cited several well-known cases which elucidate the principles governing the assessment of costs. In the case of **PREMCHAND RAICHAND LTD & ANOTHER –VS- QUARRY SERVICES OF EA LTD & OTHERS [1972]EA PG 162 and REPUBLIC –VS- MINISTER FOR AGRICULTURE & 2 OTHERS EX – PARTE SAMUEL MUCHIRI W’NJUGUNA & 6 OTHERS [2006 ]eKLR** where the Court held as follows:- ***“The complex element in the proceedings which guide the exercise of the taxing officer’s discretion must be specified cogently and with conviction .If novelty is involved in the main proceedings; the nature of it must be identified and set out in a conscientious mode.*** ***If the conduct of the proceedings necessitated the deployment of a considerable amount of industry, and was inordinately time consuming, the detail of such a situation must be set out in a clear manner.*** ***If large volumes of documentation had to be clarified, assessed and simplified, the details of such initiative by counsel must be specifically indicated apart of course from the need to show if such works have not already been provided for under a different head of costs”*** In the case of **JORETH LIMITED –VS- KIGANO & ANOTHER [2002] E.A.92** the court set out various factors that are to be considered in determine the instruction fee namely; the importance of the matter, general conduct of the case, time taken for it’s dispatch and the impact of the case on the parties. I have carefully considered the factual and legal issues with a view to gauge complexity of issues, importance of the matter, the amount involved, perusal of entire paper work, studying and preparing for the matter, responsibility shouldered based on the nature and importance of the subject matter. Bearing in mind all the aforesaid factors and the reasons herein and in exercise of the discretion vested in me, I am fully convinced that the amount sought by the Applicant is grossly excessive. The taxation of ‘advocates’ instruction fees should avoid any prospect of unjust enrichment. **Article 48** of the **Constitution** of the Republic of Kenya stipulates as follows” ***“The state shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice.”*** Although the provision is directly talking about fees, I hold the considered view that the right of access to justice should also be safeguarded in relation to costs payable to Advocates. I am fairly convinced that the basic fee applicable is governed by Schedule11 (9)of the Advocates Remuneration Order ,2014 .On question of increase on the aforesaid basic fee and this being an Advocate Client Bill of Costs, I am of the view that **Kshs.50,000/=** is reasonable instruction fees taking into account the time taken in this matter, scope of the work done and the nature of the dispute herein.**(Kshs.50,000.00)**is hereby taxed off. **Items No.2 & 4** – These items relate to service. They are taxed off as they are not provided under Schedule 11. **Item No.3** -This item relates to attendance. It is reasonably drawn to scale and I tax it as drawn. **Item No.4** – Taxed at **Kshs.4,000.00 (Kshs.1,000.000** is hereby taxed off **Items No.6** -This item relates to attendance in court for taxation. The attendances are four including taking the Ruling. This item is taxed at **Kshs.4,000.00** **Advocate and Client Costs** The Advocates Remuneration (Amendment) Order 2014 Schedule VII B on Advocate and Client costs provides that: As between Advocate and Client the minimum fee shall be- 1. The fees prescribed in A above, increased by 50%; or 2. The fees ordered by the Court, increased by 50%; or 3. The fees agreed by the parties under Paragraph 57 of this order increased by 50%; as the case may be, such increase to include all proper attendances on the client and all necessary correspondences. **Instructions fees …………………………….………...…… Kshs. 50,000.00** **Add ½ …………………………………….…………...………. Kshs.25,00.00** **Total ………………………………….…..………….……….. Kshs.75,000.00** **Add 16% VAT………………………………………..………….…12,000.00** **Total ………………………………………………………...…Kshs.89,000.00** **Add …………………………………………………….……..Kshs.10,100.00** **Total ………………………………………………………...…Kshs.99,100.00** **Conclusion** Based on the foregoing therefore, the Advocate /Applicant Client Bill of Costs dated 9th March ,2026 is hereby taxed at**Kshs.99,100.00 (*Kenya Shillings ninety nine thousand ,one hundred )*** A total sum of **(Kshs.34,000.00) *(Kenya Shillings thirty four thousand)*** is hereby taxed off from the entire Bill. 14 Days Right to file a Reference. **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **L.A. MUMASSABBA** **PRINCIPAL DEPUTY REGISTRAR** **29.7.2026** **RULING DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 29TH DAY OF JULY,2026** **In the presence of :** M/s Atieno for the Applicant M/s Njoroge for the Respondent