https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11023

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI CIVIL DIVISION** **MISC. CIVIL APPLICATION NO. E1196 OF 2023** **MWANGI KENG’ARA & CO. ADVOCATES…………….APPLICANT** **VERSUS** **GURDIP SINGH RUPRA…………………………………RESPONDENT** **RULING** 1. The Applicant’s reference by way of chamber summons 27th August, 2024 is expressed to be brought under *Paragraph 11(2)* of the *Advocates (Remuneration) Order, 2017* and the *Advocates Act, Cap 16 Laws of Kenya* and seeks the following orders: 2. **THAT the ruling of the Taxing Officer dated 15th August, 2024 on item numbers 1 (instruction fees), 56, 57, 58, 59, 60, 61, 62, 63 and 64 of the Advocate/Client Bill of Costs dated 28th November, 2023 be set aside and the same be remitted for re-taxation before any other Taxing Officer.** 1. **THAT the costs of this reference be awarded to the Advocate/Applicant.** 2. In precis, the reference is grounded on the contention that the learned Taxing Officer erred both in fact and in principle in the taxation of the Advocate–Client Bill of Costs. The Applicant contends that although a notice of objection was duly lodged under *Rule 11(1)* of the *Advocates Remuneration Order* and the reasons for taxation were contained in the ruling delivered on 15th August, 2024, the learned Taxing Officer misapplied the law by assessing instruction fees under an inapplicable provision of the *Advocates Remuneration Order* instead of *Schedule 6 Rule 1(b),* thereby arriving at an erroneous assessment. 1. The Applicant further argues that the learned Taxing Officer wrongly applied the 2014 *Advocates Remuneration Order* retrospectively, notwithstanding that the advocate had been retained in 2018 and the Bill of Costs was drawn under the 2017 *Advocates Remuneration Order.* 2. The Applicant further avers that the learned Taxing Officer failed to take into account the affidavit and written submissions filed in support of the Bill of Costs and improperly taxed off all disbursements relating to court filing fees without exercising the discretion conferred under *Rule 13A* of the *Advocates Remuneration Order.* It is contended that these errors resulted in an unjust and manifestly erroneous taxation, particularly with respect to instruction fees and the disallowed disbursements. 3. Lastly, the Applicant contends that the impugned taxation is contrary to the constitutional and public policy principles underpinning Advocates’ remuneration, as it effectively deprives the Applicant of legitimate instruction fees upon taking over the conduct of a subsisting matter, thereby potentially undermining access to legal services. 4. On those grounds, the Applicant urges the court to allow the reference by setting aside the ruling of the learned Taxing Officer and substituting it with appropriate order. 5. The application is supported by the affidavit of **Mercy Nduta Mwangi,** Advocate, sworn on 27th August, 2024. 6. In her affidavit, the deponent deposes that the Applicant was retained on or about 26th February, 2018 to represent the Respondent in *Milimani High Court Civil Case No. 111 of 2015, Gurdip Singh Rupra v Spencon Development Limited & Kasarani Hills Limited*, following which it filed a Notice of Appointment of Advocates. 7. The deponent avers that the Applicant subsequently filed an Advocate–Client Bill of Costs dated 28th November, 2023 for taxation together with the requisite list of documents, an affidavit in support of the Bill of Costs and written submissions. She further states that the Respondent opposed the Bill by filing a replying affidavit together with written and supplementary submissions before the learned Taxing Officer. 8. The deponent further deposes that, in the ruling delivered on 15th August, 2024, the learned Taxing Officer taxed item 1 on instruction fees at Ksh.6,000/- and taxed off Ksh.3,871,808.96/-, prompting the Applicant to lodge an objection under *Rule 11(1)* of the *Advocates Remuneration Order.* 9. She contends that the taxation was erroneous as it unlawfully deprived the Applicant of instruction fees payable under *Schedule 6 Rule 1(b)* of the *Advocates Remuneration Order,* the subject matter of the primary suit being valued at Ksh.2,333,853,931/-. 10. The deponent further avers that the learned Taxing Officer erroneously concluded that the Applicant had only been instructed to prosecute two applications, whereas the filing of a Notice of Change of Advocates demonstrated that the Applicant had assumed conduct of the entire suit and was therefore entitled to instruction fees based on the value of the subject matter. 11. The deponent also avers that the learned Taxing Officer misdirected herself by applying the scale applicable to applications within an appeal instead of the provisions governing the taxation of the present matter, and by retrospectively applying the 2014 *Advocates Remuneration Order* despite the retainer having arisen in 2018 and the Bill of Costs having been drawn under the 2017 *Order.* 12. She further contends that the Taxing Officer failed to consider the Applicant’s affidavit and written submissions, improperly disallowed all disbursements relating to court filing fees without invoking the discretion conferred by *Rule 13A* of the *Advocates Remuneration Order,* and consequently arrived at an unjust and erroneous taxation. 13. The deponent therefore urges the court to set aside the ruling of the Taxing Officer on instruction fees and disbursements and substitute it with appropriate orders. 14. The reference is opposed and to that end the Respondent filed a replying affidavit that he swore on 23rd October, 2024. 15. In his replying affidavit, the deponent deposes that the application is devoid of merit and should be dismissed with costs. He states that he relies on his earlier replying affidavit sworn on 13th June, 2024 and avers that the Advocate–Client Bill of Costs dated 28th November, 2023 was duly taxed by the learned Taxing Officer on 15th August, 2024 at Ksh.131,474.40/-. 16. He explains that although the Applicant came on record in the parent suit in February, 2018, the suit itself had been instituted in the year 2015 by a different firm of advocates. 17. The Respondent further deposes that the Applicant’s retainer was strictly limited to filing and prosecuting two interlocutory applications seeking the extension of the tenure of a court-appointed receiver, for which the parties had allegedly agreed on a total legal fee of Ksh.250,000/-. He denies that the Applicant was retained to conduct the entire suit or any aspect of the substantive claim, maintaining that the Applicant neither participated in the hearing of the main suit nor attended court in respect thereof. 18. Consequently, the Respondent avers that the learned Taxing Officer correctly assessed instruction fees under *Paragraph 1(c)(viii)* of the applicable *Advocates Remuneration Order* and properly rejected the Applicant’s contention that *Schedule 6 Rule 1(b)* governed the taxation. 19. The Respondent further disputes the Applicant’s assertions that the learned Taxing Officer applied the wrong scale of fees, retrospectively applied the incorrect *Advocates Remuneration Order,* or failed to consider the Applicant’s affidavit and written submissions. 20. He maintains that the applicable remuneration framework was the *Advocates Remuneration Order, 2014,* that the learned Taxing Officer expressly considered all affidavits and submissions filed by the parties and that the impugned disbursements were correctly disallowed for want of proof. 21. The Respondent therefore contends that the taxation was properly undertaken in accordance with the applicable law and prays that the reference be dismissed with costs. 22. In its submissions, the Applicant urges that the reference is meritorious as the learned Taxing Officer committed errors of both law and principle in taxing the Advocate–Client Bill of Costs. It submits that upon filing a Notice of Change of Advocates, it assumed conduct of the entire suit and not merely two interlocutory applications as alleged by the Respondent. 23. Consequently, the Respondent contends that the learned Taxing Officer erred in assessing instruction fees under *Paragraph 1(c)(viii)* of the *Advocates Remuneration Order* instead of *Schedule 6 Part B Rule 1(b),* which governs instruction fees where an advocate is retained to prosecute or defend proceedings in which the value of the subject matter is ascertainable. 24. It further contends that the learned Taxing Officer wrongly applied the repealed 2014 *Advocates Remuneration Order* instead of the 2017 *Order* under which the Bill of Costs was drawn, thereby committing an error of principle warranting interference by this Court. 25. The Applicant further submits that the Respondent’s contention that the Applicant was retained solely to prosecute two interlocutory applications and that the parties had agreed on legal fees of Ksh.250,000/- is legally untenable. It argues that if such a fee agreement existed, *Section 45(6)* of the *Advocates Act* barred taxation altogether, and the Respondent ought to have challenged the Taxing Officer’s failure to uphold that agreement through a reference under *Rule 11* of the *Advocates Remuneration Order.* Having failed to do so, the Respondent cannot reopen that issue through a replying affidavit. 26. The Applicant also contends that the Respondent’s assertion that it never appeared in the parent suit is contradicted by the court record, including hearing notices, court orders and applications filed after it came on record, all of which demonstrate that it actively conducted the matter. 27. The Applicant maintains that the learned Taxing Officer failed to appreciate the settled principle that an advocate who is duly instructed is entitled to full instruction fees irrespective of the stage at which he or she comes on record. In support of that proposition, reliance is placed on the authority of ***Peter Muthoka & Another v Ochieng & 3 Others [2019] eKLR,*** where the Court of Appeal held that before judgement, the value of the subject matter for purposes of taxation is determined from the pleadings. 28. Reliance is also placed on ***Odera Obar & Co. Advocates v Jet Properties & Apartments Ltd [2019] eKLR*** for the proposition that applying the wrong *Advocates Remuneration Order* constitutes an error of principle; ***Kamunyori & V Development Bank of Kenya Limited [2015] eKLR*** for the principle that failure to ascertain the correct subject matter or its value amounts to an error of principle; and ***First American Bank of Kenya Ltd v Gulab P. Shah [2002] eKLR*** for the proposition that instruction fees are earned once upon receipt of instructions and are not dependent on the stage reached by the proceedings. 29. The Applicant further relies on ***Kenneth Kiplagat t/a Kiplagat & Associates v National Housing Corporation Misc. Civil Application No. 128 of 2005*,** where it was held that every advocate who comes properly on record is entitled to instruction fees notwithstanding that another advocate previously acted in the matter. It similarly relies on ***Mumias Sugar Company Limited v Tom Ojienda & Associates Advocates [2021] eKLR*,** wherein the High Court affirmed that although a succeeding advocate cannot charge for work performed by a predecessor, such advocate is nevertheless entitled to full instruction fees upon taking over conduct of the matter, subject to the applicable provisions of the *Advocates Remuneration Order.* 30. The Applicant also cites ***George Arunga Sino t/a Jone Brooks Consultants Ltd v Patrick J.O. & Geoffrey D.O. Yogo t/a Atieno, Yogo & Co. Advocates [2012] eKLR*** for the proposition that instruction fees are earned immediately an advocate receives instructions and undertakes substantive work in the matter. 31. The Applicant further submits that the learned Taxing Officer disregarded binding judicial precedent, thereby offending the doctrine of *stare decisis.* In that regard, reliance is placed on ***Ekuru Aukot v Independent Electoral and Boundaries Commission & 3 Others [2017] eKLR*,** where the Court emphasized that adherence to precedent promotes certainty, predictability, equality before the law and public confidence in the administration of justice. The Applicant therefore urges that the learned Taxing Officer’s departure from established authorities rendered the impugned ruling unsustainable. 32. On the question of the value of the subject matter, the Applicant submits that it was ascertainable from the pleadings and comprised the amount recoverable by the Receiver Manager, accrued interest and the Receiver Manager’s remuneration, yielding an aggregate value of Ksh.233,853,931/- and corresponding instruction fees of Ksh.3,877,808.96/-. 33. In support of the proposition that accrued interest forms part of the value of the subject matter, reliance is placed on ***Municipal Council of Kisumu v Kenya Power & Lighting Company Limited [2018] eKLR*,** which adopted the reasoning in ***Desai Sarvia & Another v Giro Commercial Bank [2002] eKLR*** and was subsequently approved in ***Bank of India v Surgilabs Limited & 3 Others [2008] eKLR*,** to the effect that where interest is pleaded and ascertainable, it forms part of the claim for purposes of assessing instruction fees. 34. Finally, the Applicant submits that the learned Taxing Officer erred in taxing off the claimed disbursements without invoking the powers donated under *Rule 13A* of the *Advocates Remuneration Order* or calling for the court file, which was readily available through the electronic filing system, to verify the court filing fees incurred. It argues that filing fees constitute expenses incurred on behalf of a client and ought not to be disallowed without proper inquiry. 35. On those grounds, the Applicant prays that the reference be allowed, the taxation of instruction fees and disbursements be set aside, and the Bill of Costs be reassessed in accordance with the applicable provisions of the *Advocates Remuneration Order.* 36. The Respondent contends in his submissions that the reference is devoid of merit and that the learned Taxing Officer correctly exercised her discretion in taxing the Advocate–Client Bill of Costs. 37. He submits that the Applicant was not instructed to institute or prosecute the parent suit but merely came on record approximately three years after the suit had been filed for the limited purpose of filing two unopposed interlocutory applications seeking extension of the tenure of the court-appointed Receiver. 38. According to the Respondent, the Applicant neither prosecuted the substantive claim nor appeared in respect of the hearing or determination of the main suit. Consequently, the learned Taxing Officer properly applied *Paragraph 1(c)(viii)* of *Schedule VI* of the *Advocates Remuneration Order, 2014* in taxing instruction fees at Ksh.6,000/-, the entire Bill being taxed at Ksh.131,474.40/-. 39. The Respondent further submits that *Schedule VI paragraph 1(b),* upon which the Applicant relies, is inapplicable because it governs instruction fees payable for instituting suits or other substantive proceedings, whereas the Applicant neither filed the plaint nor undertook the conduct of the substantive litigation. He maintains that the Applicant’s retainer was expressly confined to two interlocutory applications for which the parties had agreed on a total fee of Ksh.250,000/-, which sum was fully paid. 40. The Respondent argues that the Notice of Change of Advocates did not enlarge the scope of the Applicant’s retainer and that there is no evidence that the Applicant was ever instructed to conduct the entire suit. He further contends that the Applicant’s subsequent request for further instructions after the matter had been listed for dismissal for want of prosecution demonstrates that its original mandate had been exhausted. 41. The Respondent submits that an advocate who comes on record after a suit has already been instituted is not automatically entitled to instruction fees based on the value of the subject matter but is only entitled to remuneration for the work actually performed. In support of that proposition, reliance is placed on ***Leonard Katunga Mbuvi t/a Katunga Mbuvi & Advocates v Accredo AG & Others [2013] eKLR*,** where the Court held that a succeeding advocate cannot claim instruction fees for work undertaken by a predecessor and is only entitled to fees for work actually done. 42. The Respondent also relies on ***Mayers & Another v Hamilton & Others [1975] EA 13*** for the proposition that although an advocate is entitled to minimum instruction fees, such advocate cannot properly charge for work not undertaken. Similar reliance is placed on ***Kenyariri & Associates Advocates v Salama Beach Hotel Ltd & 4 Others [2014] eKLR*,** in which the Court affirmed that the advocate who institutes a suit earns the full instruction fee, while subsequent advocates are remunerated only for the work they personally undertake. 43. The Respondent further submits that taxation of instruction fees is intended to provide reasonable compensation for professional services rendered and not to unjustly enrich advocates. In that regard, reliance is placed on ***Republic v Kenyatta University; Losem Naomi Chepkemoi (Ex Parte) [2021] eKLR,*** which reaffirmed the principles enunciated in ***Republic v Ministry of Agriculture & 2 Others Ex parte Muchiri W’Njuguna & 6 Others [2006] eKLR*,** namely that instruction fees should reflect reasonable compensation, avoid unjust enrichment, be assessed objectively and take into account such factors as complexity, responsibility, novelty, skill and the work actually performed. 44. The Respondent also maintains that the Applicant’s reliance on the *2017* *Advocates Remuneration Order* is misplaced, contending that the applicable law is the *Advocates Remuneration Order, 2014.* 45. The Respondent argues that the authorities cited by the Applicant are distinguishable. He submits that ***Peter Muthoka & Another v Ochieng & 3 Others*** (supra) merely addresses the manner of determining the value of the subject matter for taxation and does not establish that every advocate who subsequently comes on record is entitled to instruction fees based on that value. 46. Likewise, he contends that ***First American Bank of Kenya Ltd v Gulab P. Shah & 2 Others*** (supra) concerned advocates who had themselves filed defences for different defendants and had thereby earned instruction fees, making it distinguishable from the present case. 47. He further argues that ***Mumias Sugar Company Limited v Tom Ojienda & Associates Advocates*** (supra) involved advocates who undertook substantial work, including amendment of pleadings and conduct of arbitral proceedings, unlike the Applicant whose mandate was confined to two interlocutory applications. 48. The Respondent further relies on ***Kerio Valley Development Authority v Nathan M. Pala t/a Muhatia Pala Auctioneers & 2 Others [2023] eKLR*** for the proposition that applications arising during ongoing proceedings do not attract the same instruction fees as suits commenced by plaint and are properly taxed under *Paragraph 1(c)(viii)* relating to applications arising in pending proceedings. 49. He further urges the Court to prefer the decisions in ***Leonard Katunga Mbuvi* and *Kenyariri & Associates Advocates [2013] eKLR*,** contending that they remain good law and more directly address the issues arising in the present dispute than the authorities relied upon by the Applicant. 50. Finally, the Respondent submits that the Taxing Officer correctly disallowed the impugned disbursements because no documentary proof was produced in support thereof and that the one-half increase applicable to Advocate–Client costs had already been factored into the taxation. 51. He therefore urges the Court to find that the Taxing Officer applied the correct legal principles, awarded reasonable remuneration commensurate with the work actually performed, and consequently dismiss the reference with costs. 52. Having carefully considered the reference, the affidavits sworn in support of and in opposition thereto, the rival submissions of counsel, the authorities cited by the parties and the applicable law, I am of the considered view that the following issues arise for determination. 53. Whether the learned Taxing Officer committed an error of principle or law in assessing instruction fees under *Paragraph 1(c)(viii)* of *Schedule VI* of the *Advocates Remuneration Order* instead of *Schedule VI Part B Rule 1(b),* including the question whether the applicable *Advocates Remuneration Order* was that of 2014 or 2017. 54. Whether the learned Taxing Officer erred in principle by taxing item 1 on instruction fees at Ksh.6,000/- and by disallowing items 56 to 64 relating to disbursements, including whether the Applicant was entitled to instruction fees based on the value of the subject matter and whether the impugned disbursements were properly disallowed. 55. Depending on the determination of the foregoing issues, whether the Applicant has established sufficient grounds to warrant this Court’s interference with the exercise of the learned Taxing Officer’s discretion and, if so, whether the impugned taxation should be set aside and the Bill of Costs remitted for re-taxation before a different Taxing Officer or such other appropriate orders made. 56. The final issue is who should bear the costs of this reference. 57. The jurisdiction of this Court in a reference from taxation is well settled. Although a Judge ought not to interfere with the decision of a Taxing Officer merely because he or she would have arrived at a different figure, interference is warranted where it is demonstrated that the Taxing Officer committed an error of principle, took into account irrelevant considerations, failed to take into account relevant considerations, applied the wrong legal principles or where the award is so manifestly excessive or so inordinately low as to justify an inference that the Taxing Officer acted upon a wrong principle. 58. The foregoing principle was affirmed in ***First American Bank of Kenya Ltd v Gulab P. Shah & 2 Others*** (supra), where the High Court observed that a Judge will interfere where the Taxing Officer has committed an error of principle and that the application of an incorrect principle inevitably vitiates the taxation. 59. The same approach was adopted by the Court of Appeal in ***Joreth Limited v Kigano & Associates,*** (supra) where the Court reiterated that taxation is not an arbitrary exercise but one governed by settled legal principles under the *Advocates Remuneration Order.* 60. The Applicant’s principal complaint is that the learned Taxing Officer erroneously treated the Applicant’s retainer as being confined to two interlocutory applications and consequently taxed instruction fees under *Paragraph 1(c)(viii)* instead of *Schedule VI Part B Rule 1(b)* of the applicable *Advocates Remuneration Order.* The Respondent, on the other hand, maintains that the Applicant’s engagement was limited to two applications for extension of the tenure of the Receiver and that the learned Taxing Officer therefore applied the correct scale. 61. I have anxiously considered these rival arguments. The starting point must be the undisputed fact that the Applicant came on record by filing a Notice of Change of Advocates. Once such notice was duly filed and served, the Applicant became the advocate on record for the Respondent in the suit. In law, a notice of change is not a notice of limited appearance. It signifies that the incoming advocate assumes conduct of the proceedings on behalf of the client unless the retainer is expressly shown to have been restricted. 62. The Respondent urged that the Applicant was instructed solely for purposes of prosecuting two interlocutory applications. That assertion, however, raises a question of the scope of the retainer. In my respectful view, such a limited retainer cannot merely be inferred. It must be demonstrated by cogent evidence. Apart from the Respondent’s deposition, there is no written retainer expressly limiting the Applicant’s mandate to two interlocutory applications. 63. To the contrary, the record demonstrates that the Applicant formally came on record as advocate for the Respondent in the entire suit. A Notice of Change of Advocates is not filed in respect of isolated interlocutory applications. It substitutes the previous advocate in the proceedings. Had the intention been merely to engage counsel for specific applications, nothing would have been easier than reducing that arrangement into writing. 64. The Respondent further asserted that the parties had agreed upon a professional fee of Ksh.250,000/=. That contention presents considerable difficulty. If indeed there existed a binding remuneration agreement within the meaning of *Section 45* of the *Advocates Act,* the logical consequence would have been that taxation was unnecessary, save in circumstances recognized by the *Act.* 65. The Respondent cannot simultaneously rely upon an alleged binding fee agreement while at the same time defending a taxation undertaken as though no such agreement existed. 66. More importantly, the learned Taxing Officer did not determine that the Bill of Costs was barred by reason of a valid remuneration agreement. Instead, the Bill proceeded to taxation on its merits. Having done so, the learned Taxing Officer was required to determine the applicable scale under the *Advocates Remuneration Order.* 67. In my respectful view, that exercise called for determination of the true nature of the Applicant’s retainer. The ruling proceeded on the premise that because the Applicant had drawn two interlocutory applications, *Paragraph 1(c)(viii)* automatically became applicable. With respect, that reasoning overlooked the legal significance of the Notice of Change of Advocates and the nature of the Advocate-Client relationship thereby created. 68. I find persuasive the authorities relied upon by the Applicant holding that instruction fees are earned upon receipt of instructions and are not dependent upon the stage reached by the proceedings. Those authorities recognize that an advocate who properly comes on record assumes professional responsibility for the conduct of the client’s case and becomes answerable for the litigation from that point forward. 69. Equally persuasive is the proposition that where the value of the subject matter is ascertainable from the pleadings, the same should ordinarily provide the basis for determining instruction fees. That principle has received consistent judicial approval because instruction fees are intended to reflect, among other things, the value, responsibility and importance of the litigation entrusted to Counsel. 70. The learned Taxing Officer, however, treated the matter as though the Applicant had merely filed two applications divorced from the parent suit. In my respectful view, that approach compartmentalised the retainer in a manner not borne out by the court record. 71. The Respondent urged this Court to adopt the reasoning in ***Leonard Katunga Mbuvi t/a Katunga Mbuvi & Advocates v Accredo AG & Others*** (supra). I have considered that decision carefully. With respect, it is distinguishable. In that matter, the Court was principally concerned with preventing duplication of instruction fees between successive advocates. The Court did not lay down an inflexible principle that every advocate coming on record after commencement of proceedings is invariably disentitled to instruction fees determined under the applicable scale. 72. Similarly distinguishable is ***Kenyariri & Associates Advocates v Salama Beach Hotel Ltd & 4 Others*** (supra). That decision turned upon its own peculiar facts concerning work actually undertaken by successive advocates. It cannot, in my respectful view, be read as establishing that a Notice of Change of Advocates automatically reduces the succeeding advocate’s entitlement to remuneration under the applicable schedule irrespective of the scope of the retainer and the circumstances of the case. 73. The same may be said of ***Mayers & Another v Hamilton & Others*** (supra). That authority correctly emphasizes that an advocate ought not to charge for work not undertaken. With respect, the Applicant herein does not seek remuneration for work undertaken by previous advocates. Rather, it claims instruction fees arising from the retainer accepted upon assuming conduct of the Respondent's case. Those are conceptually different matters. 74. Likewise, ***Kerio Valley Development Authority v Nathan M. Pala t/a Muhatia Pala Auctioneers & 2 Others*** (supra) dealt with taxation arising from applications made during subsisting proceedings. The factual matrix in that decision differs materially from the present reference, where the central issue is whether the Applicant’s retainer extended to conduct of the suit following a formal change of advocates. 75. I am therefore persuaded that the authorities relied upon by the Applicant are more closely aligned with the facts of this case. In particular, the proposition that a succeeding advocate may be entitled to instruction fees depending upon the nature of the retainer is more consistent with both the structure of the *Advocates Remuneration Order* and the realities of legal practice. 76. I also find merit in the Applicant’s complaint concerning the applicable *Advocates Remuneration Order.* The learned Taxing Officer proceeded on the basis of the 2014 *Order* whereas the Applicant maintained that the 2017 *Order* governed the retainer. Whether ultimately the 2014 or 2017 *Order* applied required careful legal analysis because the applicable remuneration regime affects both the scale and the assessment of instruction fees. 77. The applicable scale of fees is the one contained in the *Advocates (Remuneration) Order* in force at the time the advocate rendered the legal services. This is because the advocate’s entitlement to fees arises upon the performance of those services. It follows that neither a preceding nor a subsequent *Advocates (Remuneration) Order* governs the taxation of those fees. 78. The ruling under reference did not undertake that analysis in any meaningful manner. Instead, the applicable *Order* appears simply to have been assumed. In my respectful view, where rival remuneration orders are invoked by the parties, the Taxing Officer bears the duty of expressly determining which legal regime governs the taxation and giving reasons therefor. Failure to do so constitutes an error of principle. 79. I am equally persuaded that the learned Taxing Officer fell into error in relation to the impugned disbursements. The Applicant complained that court filing fees were taxed off for want of proof despite the fact that the court file and the electronic filing system were readily available for verification. 80. *Rule 13A* of the *Advocates Remuneration Order* confers extensive powers upon a Taxing Officer to call for records and satisfy himself or herself as to matters necessary for a proper taxation. Those powers exist precisely to facilitate a fair and just determination of contested items. 81. Court filing fees are unlike many other disbursements. They ordinarily leave an identifiable trail upon the court record. Where doubt exists regarding payment, it would generally be preferable for the Taxing Officer to verify the court record before disallowing the claim outright. 82. In the present matter, there is no indication that the learned Taxing Officer considered invoking those powers. The wholesale disallowance of the filing-fee items without any attempt at verification, in the circumstances of this case, amounted to a failure to properly exercise the discretion conferred by *Rule 13A* judiciously. 83. The cumulative effect of the foregoing matters persuades me that the impugned taxation cannot stand. The errors identified are not mere disagreements on quantum. They concern the legal framework governing taxation, the proper construction of the advocate’s retainer, the applicable remuneration order and the exercise of statutory discretion in relation to disbursements. Those are errors of principle which entitle this Court to interfere. 84. Once an error of principle has been established, the usual course is not for the Judge to undertake taxation afresh but to remit the Bill for taxation before a different Taxing Officer unless the circumstances plainly justify substitution. That course preserves the statutory role entrusted to the Taxing Officer while ensuring that the fresh taxation proceeds upon correct legal principles. 85. In the premises, I am satisfied that the Applicant has established sufficient grounds for this Court to interfere with the impugned taxation. The reference therefore succeeds. 86. Consequently, I make the following orders: 87. **The reference dated 27th August, 2024 is hereby allowed.** 88. **The ruling of the learned Taxing Officer dated 15th August, 2024 in respect of item 1 (instruction fees) and items 56, 57, 58, 59, 60, 61, 62, 63 and 64 of the Advocate–Client Bill of Costs dated 28th November, 2023 is hereby set aside.** 89. **The Advocate–Client Bill of Costs dated 28th November, 2023 shall be remitted for fresh taxation, on priority basis, before a Taxing Officer other than Hon. A.N. Sisenda.** 90. **In conducting the fresh taxation, the Taxing Officer shall determine the applicable *Advocates Remuneration Order,* the proper scale applicable to instruction fees, the scope of the Applicant’s retainer, and the impugned disbursements in accordance with the law and the principles set out in this ruling.** 91. **The Applicant shall have the costs of this reference.** 92. **The matter to be mentioned before the Deputy Registrar, Milimani High Court Civil Division on 30th July, 2026 for compliance and/or further directions.** DELIVERED, DATED & SIGNED this 7th day of July, 2026. **JOE M. OMIDO** **JUDGE** FOR THE APPLICANT: **Ms. Mwangi.** FOR THE RESPONDENT: **Ms. Zeynab** for **Mr. Sarvia.** COURT ASSISTANTS: **Mr. Ngoge & Mr. Juma.**