https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6918

Muiruri v Barclays Bank of Kenya Ltd (Commercial Case 493 of 2013) [2026] KEHC 6918 (KLR) (Commercial and Tax) (8 May 2026) (Ruling) Neutral citation: [2026] KEHC 6918 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case 493 of 2013 MN Mwangi, J May 8, 2026 Between Peter Ng’Ang’A Muiruri Plaintiff and Barclays Bank Of Kenya Ltd Defendant (A Reference from the Ruling by Hon. L. Adisa, Taxing Officer, delivered on 19th June 2025) Ruling 1.The defendant filed a Chamber Summons Application (Reference) dated 27th June 2025 pursuant to the provisions of Paragraph 11(2) & (3) of the Advocates (Remuneration) Order and Section 3A of the Civil Procedure Act. The defendant seeks orders that this Court upholds its objection, sets aside the Ruling dated 19th June 2025 on taxation of the plaintiff’s party & party bill of costs, and remit the said bill of costs for fresh taxation before a different Taxing Officer with appropriate directions. 2.On perusal of the Reference, it is manifest that it is based on the grounds on the face of the Summons, but it is not supported by an affidavit. 3.In opposition to the Reference, the plaintiff filed Grounds of Opposition dated 18th November 2025, raising the following issues -i.The defendant's Reference, which contests the taxation of the plaintiff's bill of costs dated 17th May 2023, contains fundamental deficiencies and should be dismissed or struck out. Specifically, the defendant has introduced factual issues that have not been substantiated or supported by an affidavit. Without credible evidence underpinning the claims outlined in the Reference, the challenge lacks sufficient merit and fails to justify any interference with the Taxing Officer’s determination;ii.The defendant’s Reference to the Honourable Court objecting to the Taxation Ruling by the Taxing Officer delivered on 19th June 2025 is incompetent and does not lie for violation of the procedure prescribed for ventilating objections to taxation of Party and Party Costs by provisions of Paragraph 11 of the Advocates Remuneration Order, 2014;iii.The defendant’s Reference is incompetent and does not lie at law for want of verification of statements of fact thereof by any affidavit supported by documentary evidence mandated by Paragraph 11 of the Advocates Remuneration Order, 2014, including evidence, if any, of the defendant’s objection to the Taxing Officer objecting to taxation by the Taxing Officer of any items in the plaintiff’s bill dated 17th May 2023, documentary evidence of the Taxation Ruling delivered by the Taxing Officer on 19th June 2025, and the Taxing Officer’s reasons for taxation of items, if any, objected to by the defendant;iv.The defendant’s Reference is incompetent for questioning the exercise of judicial discretion by the Taxing Officer in taxing the plaintiff’s bill of costs without specifying or demonstrating any particular aspect in which the Taxing Officer erred in the exercise of her discretion and for failing to identify what the Taxing Officer failed to do that was required or what she did that was improper in the course of the taxation;v.The objection by the defendant alleging at prayer (a) of its Reference mix-up of items in the Bill of Costs is frivolous, baseless, and unsupported by facts in the taxation Ruling by the Taxing Officer and incompetent for want of any evidence of the defendant’s objection thereto as mandated by provisions of Paragraph 11 of the Advocates Remuneration Order, 2014; andvi.The defendant’s objection misconceives the Taxing Officer’s exercise of discretion to evaluate and determine Advocates’ reasonable costs where the value of the subject matter is not determinable by pleading, judgment or settlement by the parties under the provisions of the Advocates Remuneration Order, taking into account several key factors, including the nature and importance of the cause or matter, the amount involved, the interests of the parties, the general conduct of the proceedings, any direction provided by the Trial Judge, and all other relevant circumstances. 4.The Reference herein was canvassed by way of written submissions. The defendant’s submissions were filed by the law firm of Waruhiu K’owade & Ng’ang’a Advocates on 8th December 2025, whereas the plaintiff’s submissions were filed on 21st November 2025 by the law firm of F. N. Wamalwa & Company Advocates. 5.Mr. Thiga, learned Counsel for the defendant submitted that under Paragraph 11 of the Advocates (Remuneration) Order, 2014, a party objecting to taxation is only required to seek reasons from the Taxing Officer where such reasons are not already contained in the Ruling. He relied on the cases of Rupande & another (Administrators of the Estate of the Late – Joseph Sironga Rupande) v Taliti Collins Advocates [2025] KEELC 7995 (KLR), and asserted that where a Taxation Ruling expressly contains reasons for the taxation as in this case, there is no need to request further reasons before the filing of a Reference. He stated that the only relevant consideration is timeliness, and the Reference herein was filed within nine (9) days, making it to be properly before the Court. 6.Counsel argued that the absence of a supporting affidavit is not fatal, as Paragraph 11 does not mandate one, and that the Ruling and the bill of costs need not be annexed since they form part of the Court record. He stated that the Court’s finding in the case of Nyaanga & another v Otieno [2023] KEHC 502 (KLR), relied on by the plaintiff is distinguishable as it concerned a Reference from a Subordinate Court. Mr. Thiga contended that the taxation process was fundamentally flawed due to a mix-up of bills of costs. He submitted that while parties submitted on a bill of costs dated 17th October 2022, the impugned Ruling was based on a different bill of costs dated 17th May 2023, which was never served on the defendant. He asserted that this discrepancy resulted in significant inconsistencies in item numbering and content, suggesting procedural irregularity that vitiated the taxation. 7.He further submitted that the Taxing Officer misdirected herself by awarding exorbitant instruction fees based on discretion despite the value of the subject matter being ascertainable from the pleadings and Judgment as Kshs. 1,513,614.20, contrary to the principles laid down by the Court in the case of Premchand Raichand Ltd v Quarry Services of East Africa Ltd [1972] EA 162, the Court of Appeal case of Joreth Ltd v Kigano & Associates [2002] KECA 153 (KLR) and the Supreme Court case of Kenya Airports Authority v Otieno Ragot and Company Advocates [2024] KESC 44 (KLR). Counsel highlighted apparent arithmetic errors, noting that the taxed sum was overstated by Kshs.865,103.00, further undermining the integrity of the taxation. 8.Mr. Wamalwa, learned Counsel for the plaintiff submitted that the defendant’s Reference is fundamentally incompetent for failure to comply with the mandatory procedure under Paragraph 11 of the Advocates Remuneration Order. He argued that the Reference raises factual allegations without any supporting affidavit or documentary evidence, including the absence of a written Notice of Objection to the Taxing Officer, the reasons for taxation, and the Ruling itself. Relying on the case of Maina t/a Mathai Maina & Co Advocates v Wesonga [2024] KEELC 4049 (KLR), Counsel submitted that the procedure under Paragraph 11 is mandatory and must be strictly followed. 9.Mr. Wamalwa further relied on the cases of Njau t/a The Place v Onsongo t/a Hegeons Auctioneers [2023] KEELRC 1435 (KLR) and Nyaanga & another v Otieno [2023] KEHC 502 (KLR), to emphasize that failure to comply with procedural requirements, including annexing the Ruling and demonstrating the objection, renders a Reference incompetent. He also cited the case of Kiplagat v Chelimo & 6 others [2024] KEELC 6256 (KLR), to underscore that a Court will not interfere with a Taxing Officer’s decision absent an error of principle, which the applicant has failed to demonstrate. Mr. Wamalwa dismissed the alleged mix-up of items in the bill of costs as unfounded and asserted that item No. 388, taxed at Kshs.600,000/= together with items Nos. 386 & 387 under instruction fees, was only duplicated typographically under “DRAWINGS” and was not double-counted in the final sum. 10.Counsel relied on the Supreme Court case of Kenya Airports Authority v Otieno Ragot and Company Advocates (supra) and the case of Thomas James Arthur v Nyeri Electricity Undertaking [1961] EA 92, and submitted that the Taxing Officer properly exercised her discretion in assessing instruction fees, particularly where the value of the subject matter was not ascertainable from the pleadings, judgment, or settlement. Mr. Wamalwa maintained that the Taxing Officer meticulously evaluated each item in the Bill of Costs and arrived at a fair and proportionate Award of Kshs.1,842,681.00, taking into account the protracted nature of the litigation spanning over twelve (12) years, the complexity of proceedings, and the defendant’s unsuccessful counterclaim. He submitted that the defendant failed to identify any specific error, misdirection, or improper exercise of discretion by the Taxing Officer, rendering the Reference vague and speculative. Analysis and Determination. 11.I have considered the instant application, the grounds on the face of the Summons and the grounds of opposition filed by the plaintiff, as well as the written submissions by Counsel for the parties. The issues that arise for determination are as follows –i.Whether this Court’s jurisdiction to hear and determine the instant Reference has been properly invoked;ii.Whether the Reference herein is fatally defective for want of a supporting affidavit; andiii.Whether the instant Reference is merited. Whether this Court’s jurisdiction to hear and determine the instant Reference has been properly invoked. 12.The plaintiff in opposition to the instant Reference contended that it is incompetent for non-compliance with the mandatory procedural steps provided for under Paragraph 11, including failure to demonstrate that a written Notice of Objection was issued to the Taxing Officer, failure to request for reasons for taxation, and failure to annex the Ruling and supporting documents. He asserted that the instant application is a nullity. 13.The procedure for objecting to a Taxing Officer’s decision is provided for under Paragraph 11(1) & (2) of the Advocates Remuneration Order, 2014, which states 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. 14.From the record, it is evident that the Taxing Officer delivered a Ruling on the plaintiff’s Party & Party bill of costs dated 17th May 2023, on 19th June 2025. It is however not in contest that despite being dissatisfied with the said Ruling, the applicant has to date never complied with the provisions of Paragraph 11(1) of the Advocates Remuneration Order, 2014, which requires it to issue the Deputy Registrar with a Notice of Objection. In the case of Matiri Mburu & Chepkemboi Advocates v Occidental Insurance Company Limited [2017] KEHC 1032 (KLR), the Court in striking out a Reference held that -… the provisions of Paragraph 11 of the Remuneration Order serve several purposes. Firstly, the requirement that a party seeking reasons gives a notice of items objected to, serves to narrow down the issues, and secondly, give notice to the adverse party and the taxing master of his objection. Thus, the taxing master, adverse party and ultimately the reference court in their respective roles can focus on the specific matter objected to rather than entire bills of costs, which often run into several pages. The objective is obvious: the expeditious disposal of taxation disputes. Thus, compliances with the requirements of paragraph 11 of the Remuneration Order is not a mere technicality that can be pushed aside peremptorily as the Applicant appears to suggest. 15.It is noteworthy that in the instant application, the applicant has not sought leave and/or extension of time to comply with the provisions of Paragraph 11(1) of the Advocates Remuneration Order, 2014, so as to properly invoke the jurisdiction of this Court. 16.The jurisdiction of the Court to entertain and determine a Reference is triggered only upon strict compliance with the provisions of Paragraph 11(1) of the Advocates (Remuneration) Order, 2014. This Court is of the considered view that a Notice of Objection under the said Paragraph is akin to a Memorandum of Appeal in appellate proceedings, and it constitutes a mandatory procedural step. Consequently, failure to file and serve a proper Notice of Objection cannot be treated as a mere technicality curable under Article 159(2)(d) of the Constitution, in the interest of substantive justice. Rather, such non-compliance is fatal, as it goes to the very root of this Court’s jurisdiction to adjudicate a Reference. 17.In the case of Mwicigi & 14 others v Independent Electoral and Boundaries Commission & 5 others [2016] KESC 2 (KLR), the Supreme Court of Kenya considered the importance of adherence to the laid down procedures in approaching a Court of law as hereunder -This court has on a number of occasions remarked upon the importance of rules of procedure, in the conduct of litigation. In many cases, procedure is so closely intertwined with the substance of a case, that it befits not the attribute of mere technicality. The conventional wisdom, indeed, is that procedure is the handmaiden of justice. Where a procedural motion bears the very ingredients of just determination, and yet it is overlooked by a litigant, the Court would not hesitate to declare the attendant pleadings incompetent.Yet procedure, in general terms, is not an end in itself. In certain cases, insistence on a strict observance of a rule of procedure, could undermine the cause of justice. Hence the pertinence of Article 159(2) (d) of the constitution, which proclaims that, “...courts and tribunals shall be guided by...[the principle that] justice shall be administered without undue regard to procedural technicalities”. This provision, however, is not a panacea for all situations befitting judicial intervention; and inevitably, a significant scope for discretion devolves to the courts. 18.In the premise, this Court finds that adherence to the provisions of Paragraph 11(1) of the Advocates (Remuneration) Order, 2014, is mandatory, and any failure to comply with its requirements is fatal to the Reference herein. 19.Consequently, this Court is persuaded that its jurisdiction to entertain and determine the instant Reference was not properly invoked. Accordingly, this Court lacks the requisite jurisdiction to hear and determine the Reference herein on its merits. See the case of the Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, where it was held that -…Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. 20.In light of the analysis made in this Ruling, this Court finds that the instant application is fatally defective, and it is hereby struck out with costs to the plaintiff/respondent.It is so ordered. DATED, SIGNED AND DELIVERED AT KIAMBU ON THIS 8TH DAY OF MAY 2026. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.NJOKI MWANGIJUDGEIn the presence of:Ms Muthama h/b Mr. Thiga for the defendant/applicantMr. F.N. Wamalwa for the plaintiff/respondentMs Julia – Court Assistant.NJOKI MWANGI, J.