https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13078

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAKURU** **FAMILY DIVISION MISC. APP. NO. E025 OF 2024** **IN THE MATTER OF THE ADVOCATES ACT ,CAP 16 LAWS OF KENYA** **AND** **IN THE MATTER OF TAXATION OF COSTS BETWEEN ADVOCATE AND CLIENT** **BETWEEN** **RAYDON MWANGI T/A RAYDON MWANGI & ASSOCIATES** **ADVOCATES..................................ADVOCATE/RESPONDENT** **VERSUS** **WILLIAM KURIA NJENGA………......RESPONDENT/APPLICANT** **RULING** 1. The instant application is filed pursuant to the provisions of Rule 11 of the Advocates Remuneration Order. The Applicant's Chamber Summons dated 26th August 2025 seeks the following orders: 1. ***Spent.*** 2. ***Spent.*** 3. ***That the Certificate of Costs dated 29th July 2025 be set aside and/or vacated.*** 4. ***That the Ruling of the Taxing officer dated 20th June 2025 be set aside and the Advocate-Client Bill of Costs dated 31st July 2024 be struck out and/or dismissed with costs.*** 5. ***That in the alternative, the Advocate-Client Bill of Costs dated 31st July 2024 be remitted back for taxation before a different Taxing Officer.*** 6. ***That further in the alternative, and only if this Honourable Court finds that the Reference herein was filed outside the prescribed time, this Honourable Court be pleased to enlarge the time for lodging and prosecuting the same and deem the Reference herein as duly filed.*** 7. ***That this Honourable Court grants any other relief that may be just to meet the ends of justice in this case.*** 8. ***That the costs of this Reference be borne by the Advocate/Respondent.*** 2. The application is founded on the following grounds that the learned Deputy Registrar delivered a ruling on taxation on 20th June 2025 taxing the Advocate/Respondent's Bill of Costs dated 31st July 2024 at Kshs. 285,482/=. That the learned Deputy Registrar failed to appreciate that the Advocate and Respondent had entered into a binding fee agreement in which the total fees were agreed at Kshs. 54,400/-, which the Respondent fully paid. That the learned Deputy Registrar failed to appreciate that the Advocate filed the instant Bill of Costs in breach of a Consent lodged at the Advocates Complaints Commission on 27th August 2024, wherein he undertook to withdraw the said Bill in exchange for the Respondent's withdrawal of the complaint against him. That the learned Deputy Registrar proceeded to tax the Bill of Costs on the sole basis that the complaint which the Respondent/Applicant had lodged with the Law Society of Kenya had been dismissed. However, the learned Deputy Registrar failed to consider the reasons for the dismissal being that the LSK declined to entertain the complaint because the same was actively being handled by the Advocates Complaints Commission, and not because the complaint lacked merit. The reliance on the dismissal without appreciating the underlying reason was a serious misdirection. That the learned Deputy Registrar failed to appreciate the Respondent's replying affidavit sworn on 18th November 2024 and written submissions dated 21st November 2024, which clearly detailed the existence of the fee agreement and the limited scope of legal work undertaken by the Advocate. That the Taxing Officer erred in awarding instruction fees of Kshs. 225,000/= in disregard of the agreed fees, the limited instructions given, and the fact that the bulk of legal work in Succession Cause No. 327 of 2016 was conducted by a different firm, A.N. Geke & Co. Advocates. That the Advocate only came on record late in the rectification proceedings and his role was confined to limited court attendances, which did not justify the inflated instruction fees awarded. That the ruling failed to account for the fact that legal representation had initially been provided by a different advocate, and the Applicant did not act in the entire cause. That being dissatisfied with the taxation, the Applicant filed the Notice of Objection dated 3rd July 2025 to the said ruling of taxation delivered on 20th June 2025, in respect of the items objected to, together with a letter of even date requesting for reasons from the Deputy Registrar on the said items. That despite the said Notice of Objection and request for reasons having been duly filed on 3rd July 2025, the Deputy Registrar has to date failed to furnish the reasons for taxation as required. That the Applicant only recently learnt that while his objection was still pending, the Respondent proceeded to apply for a Certificate of Taxation, filing a draft thereof on 29th July 2025, whereupon the Court issued a Certificate of Costs dated 29th July 2025. That in light of the foregoing, it is only just and equitable that the orders sought be granted and the ruling of the Deputy Registrar dated 20th June 2025 and the consequent Certificate of Costs dated 29th July 2025 be set aside, and the Bill of Costs either struck out in its entirety or remitted for taxation before a different taxing officer. And finally, that unless the Certificate of Costs is stayed and the impugned taxation set aside, the Applicant stands to suffer prejudice through unlawful and unjustified execution of inflated costs. 3. The Respondent opposes the application through Grounds of Opposition dated 1st October 2025 and a replying affidavit sworn by PETER RAYDON MWANGI on even date. The Respondent contends that the application is premature and incompetent for failing to comply with the mandatory provisions of Rule 11(2) of the Advocates Remuneration Order. That the Court at this stage lacks jurisdiction to entertain the reference as the taxing master is yet to give reasons on the items being challenged.That the reference is filed out of time and the delay has not been properly explained That the application is an abuse of the Court process being a delay tactic aimed at prolonging litigation. 4. In his replying affidavit, the Respondent states that the ruling was fair to the Applicant since his bill of costs was for a sum of Kshs. 762,615.90/- and it is after considering the Applicant's replying affidavit and submissions that some amounts were taxed off. The Respondent further states that upon delivery of the said ruling, he proceeded to request for a certificate of costs upon the lapse of 14 days since no notice of objection was served upon him indicating the intention to challenge the taxation. The Respondent maintains that at the time of instructions, the Applicant signed an instruction note agreeing that fees payable shall be subject to the Advocates Remuneration Order as such there was never any oral agreement as to fees. He further states that the Applicant in an attempt to avert paying his fees lodged frivolous complaints against him at the Advocates Complaints Commission and the Law Society of Kenya which complaints were dismissed accordingly for failing to raise any ground of misconduct on his part. The Respondent contends that the Applicant's personal grudge with his mother cannot form basis for denying him his fees, that at no point did he enter into an oral agreement to charge the Applicant Kshs. 54,400 as the same would amount to undercutting, and that the instruction note was irrevocable thus no oral agreement could revoke it. The Respondent further states that at no point did he enter into a consent with the Applicant on fees as he only served his office with a notice of withdrawal of complaint on 29th August 2024 which at clause 4 acknowledged that the Applicant was to pay his fees. The Respondent argues that the mere fact that he took over the matter from another firm of Advocates is not enough to deny him instruction fees having rendered his services to the Applicant herein. He contends that the Taxing Master justified and explained her award for instruction fees in her ruling and that no error in principle has been established against the taxing master's decision to warrant interference with the decision. 5. From the record, I note that at the time of writing this ruling, the Respondent had not filed his submissions. Having considered the application, the grounds in support thereof, the Respondent's opposition, and the submissions filed by the applicant, the following issues arise for determination: *(a) Whether the Applicant complied with the provisions of Rule 11(1) of the Advocates Remuneration Order.* *(b) Whether the Certificate of Costs dated 29th July 2025 was irregularly and prematurely issued and ought to be set aside.* *(c) Whether the Ruling of the Taxing Master dated 20th June 2025 ought to be set aside and the Advocate-Client Bill of Costs struck out or remitted for fresh taxation.* *(d) Whether the Respondent's objections to the application have merit.* 6. The procedure for challenging a taxation is provided for under Paragraph 11 of the Advocates Remuneration Order which provides 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.* 7. In effect, a party who wishes to object to a decision of a Taxing Master ought to write to the Taxing Master within fourteen days of the decision requesting for the reasons for the decision. Once the Taxing Master responds to the request, the party should lodge his objection to the taxation within fourteen days of receipt of the response from the Taxing Master. 8. Upon delivery of the taxation ruling on 20th June 2025, the Applicant filed a Notice of Objection and a Request for Reasons on 3rd July 2025. These documents, annexed to the Applicant's supporting affidavit as "WK-5(a) & (b)", were filed within the statutory fourteen days prescribed under Rule 11(1) of the Advocates (Remuneration) Order. The Notice of Objection challenged Items 1 to 19 of the Bill of Costs, Disbursements Items 1 and 2, Further Expenses Items 1, 2, 3, 5, 7, 8, 9, and 10, and Value Added Tax. The Applicant's compliance with Rule 11(1) is therefore not in dispute. 9. The Respondent's argument that no notice of objection was served upon him is misplaced. Rule 11(1) does not require the objector to serve the notice of objection on the advocate. The notice is given to the Taxing Officer, who is then obliged to furnish reasons. The Respondent's contention that no notice was served on them is therefore irrelevant in the circumstances of this matter. This Court finds that the Applicant duly complied with the provisions of Rule 11(1) of the Advocates Remuneration Order. 10. The Applicant's Notice of Objection and Request for Reasons dated 3rd July 2025 triggered the mandatory duty of the Taxing Officer under Rule 11(2) to "forthwith record and forward to the objector the reasons for his decision on those items." Despite this, the Respondent procured and caused the issuance of the Certificate of Costs dated 29th July 2025 while the objection and request for reasons were still pending. The Taxing Officer failed to provide any reasons for the taxation. The duty to give reasons is not discretionary but a constitutional, statutory and procedural obligation anchored under Article 10 and 47(1) of the Constitution and Paragraph 11(1) and (2) of the Advocates Remuneration Order. The failure to supply reasons deprives the applicant the right of an appeal or review to a superior court. This Court has carefully perused the ruling dated 20th June 2025 and finds that while the instruction fees were mentioned, there was no explanation of how the figure was determined, nor any reasoning provided for the assessment of any other contested items such as disbursements, getting-up fees, or other charges. The ruling merely lists the amounts taxed per item without providing the basis for the figures. 11. The effect of the provisions of Rule 11 is that once an objection has been lodged, the Taxing Officer is barred from taking any further step in the matter until reasons have been furnished and the objector afforded an opportunity to exercise their right of reference. The issuance of a Certificate of Costs while an objection is pending defeats the very purpose of Rule 11, which is to ensure that the taxation process remains open to judicial review before it is finalized. This Court finds that the Taxing Officer had not furnished reasons as required, and the Applicant had not withdrawn or abandoned the objection. The issuance of the Certificate of Costs dated 29th July 2025 was therefore a procedural irregularity that renders the certificate a nullity ab initio. 12. The Respondent's argument that the application is premature because reasons have not been given is misconceived. It is precisely because reasons were not given that the Applicant was forced to seek judicial intervention. The Applicant cannot be faulted for the Taxing Officer's failure to perform her statutory duty. Accordingly, this Court finds and holds that the Certificate of Costs dated 29th July 2025 was irregularly and prematurely issued and ought to be set aside. 13. The Applicant has raised several grounds challenging the Taxing Master's ruling on the merits. The principles governing this Court's interference with a Taxing Officer's decision are well settled. In ***First American Bank of Kenya v Shah & Others [2002] 1 KEHC 1277 KLR,*** Ringera J. (as he then was) stated: *"This Court cannot interfere with the taxing officer's decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was so manifestly excessive as to justify an inference that it was based on an error of principle."* 14. An error of principle occurs where the Taxing Officer applies the wrong schedule of the Remuneration Order, or ignores a relevant factor, or considers an irrelevant factor, or fails to verify facts or evidence properly placed before them. 15. The Applicant contends that the Taxing Master failed to appreciate that the Advocate and Respondent had entered into a binding fee agreement in which the total fees were agreed at Kshs. 54,400/-, which the Respondent fully paid. The Applicant further contends that the Taxing Master failed to appreciate that the Advocate filed the instant Bill of Costs in breach of a Consent lodged at the Advocates Complaints Commission on 27th August 2024, wherein he undertook to withdraw the said Bill in exchange for the Respondent's withdrawal of the complaint against him. 16. The Applicant has presented evidence of a letter dated 27th August 2024 addressed to the Advocates Complaints Commission, which states in part: *"We all agreed as follows:... (d) Charges which the Advocate had gone through while presenting his papers in Court will be catered for by me. The refund will not be effected immediately. The Advocate will inform me how much I will pay afterwards. (f) The advocate to write a withdrawal letter as well to Nakuru High Court so that Advocate – Client bill of cost be cancelled."* 17. This letter constitutes a clear acknowledgment by the Applicant that there was an agreement to pay the Advocate's charges, that the Advocate was to withdraw the Advocate-Client Bill of Costs, and that the Applicant was to withdraw his complaint before the Advocates Complaints Commission. The Respondent has not disputed the existence or authenticity of this letter. It is therefore evident that there was a binding agreement between the parties, which the Advocate breached by proceeding with the taxation instead of withdrawing the Bill of Costs as agreed. 18. The Applicant also contends that the Taxing Master proceeded to tax the Bill of Costs on the sole basis that the complaint which the Applicant had lodged with the Law Society of Kenya had been dismissed. This was a fundamental misdirection. As evidenced by the letter from the Law Society of Kenya dated 24th October 2024, the complaint was declined because the same matter was already actively under consideration by the Advocates Complaints Commission. The LSK's administrative decision to decline jurisdiction cannot be construed as a determination that the complaint was without merit. 19. On the assessment of instruction fees, the Taxing Master assessed instruction fees at Kshs. 225,000/- (being Kshs. 150,000/- plus 50% advocate-client uplift). The Taxing Master stated: ***"I noted that there was no valuation report on the exact value of the estate... I am therefore left with no option but to use my discretion... I shall, in considering the nature of the case and the complexities that might have been involved which even included going to the Complaints Commission, tax the same at a discretionary figure of Kshs. 150,000/-."*** 20. This Court finds several errors of principle in this reasoning. The reference to "even going to the Complaints Commission" as a ground for increasing instruction fees is irrelevant. Proceedings before the Advocates Complaints Commission were post-service disciplinary matters wholly unrelated to the substantive work in the succession case. Those proceedings could not form part of the professional work for which fees were chargeable under the Bill of Costs. Further, the Taxing Master failed to identify any objective foundation for the figure of Kshs. 150,000/-. She did not tie the award to any discernible features of the work performed, any record of appearances, any pleadings drawn by the Advocate, or any specific complexity arising in the rectification proceedings. The amount was speculative and cannot be said to be the product of judicial discretion. Additionally, the Taxing Master failed to consider the limited scope of the Advocate's instructions. The Advocate came on record only for a narrow rectification application in a concluded succession case where another firm (A.N. Geke & Co. Advocates) had handled the substantive work. The Taxing Master, however, taxed instruction fees as though the Advocate had conducted the entire succession proceedings. That failure to confine assessment to the actual work done constitutes an error of principle. 21. Even assuming the Taxing Officer was correct that the value of the estate could not be ascertained, her reliance on paragraph 1(a) of Schedule 10 which applies to applications for grant of probate or letters of administration was misplaced. The work done by the Advocate was not an application for a grant of representation. It was a limited rectification of a grant, a purely procedural application done long after the substantive cause had been concluded. 22. Schedule 10 of the Advocates Renumeration Order contains no specific item for rectification applications. The only paragraph capable of covering such work is clause 1(f), which provides for any other application or proceedings under the law not otherwise provided for in this Schedule such sum as the taxing officer shall consider reasonable, but not less than Kshs 10,000. Consequently, the Taxing Master's invocation of paragraph 1(a) and subsequent reliance on the "value of the estate" was a misdirection in law. 23. On the question of the instruction note, the Respondent annexed an Instruction Note allegedly signed by the Applicant. The Applicant maintains that he neither signed nor issued the said instruction note. The complaint of forgery was brought to the attention of this Court on 16th September 2024. This Court finds that the Taxing Officer ought to have first verified the authenticity of the instruction note, heard the parties on the forgery allegation, and considered the impact of the disputed document on the Advocate's authority to act before proceeding to tax the Advocate-Client Bill. By failing to do so, the Taxing Master committed a procedural error of principle. 24. In conclusion on this issue, this Court finds that the Taxing Master's ruling is vitiated by multiple errors of principle. These include reliance on an irrelevant factor being the LSK complaint dismissal, consideration of irrelevant matters being the Complaints Commission proceedings, failure to consider the limited scope of instructions, application of the wrong head of Schedule 10, failure to give proper weight to the fee agreement and Consent, and failure to address the forgery allegation. The ruling dated 20th June 2025 should not stand and ought to be set aside. 25. Having found that the Taxing Master's ruling is vitiated by errors of principle, the Court must consider the appropriate remedy. The Applicant urges the Court to strike out the Bill of Costs entirely. This Court is not persuaded that the Bill of Costs should be struck out. If the Court considers that the decision of the Taxing Officer discloses errors of principle, the normal practice is to remit it back to the Taxing Officer for re-assessment unless the Judge is satisfied that the error cannot materially have affected the assessment. The appropriate remedy is therefore to remit the Advocate-Client Bill of Costs dated 31st July 2024 for fresh taxation before a different Taxing Officer. 26. The Respondent raised several objections which this Court now addresses. The first objection is that the application is premature and incompetent for failing to comply with Rule 11(2) of the ARO. This objection is without merit. The Applicant filed a Notice of Objection and Request for Reasons on 3rd July 2025. The Taxing Officer failed to provide reasons. The Applicant cannot be faulted for the Taxing Officer's failure to perform her statutory duty. The Chamber Summons was properly filed to seek judicial intervention. 27. The second objection is that the Court lacks jurisdiction to entertain the reference as the Taxing Master is yet to give reasons. This objection is misconceived. The Court has jurisdiction to hear the Chamber Summons precisely because the Taxing Officer failed to provide reasons. If the Court lacked jurisdiction to hear such applications, there would be no remedy for a party whose objection is ignored by the Taxing Officer. 28. The third objection is that the reference is filed out of time and the delay has not been properly explained. This objection is also without merit. The Applicant filed his Notice of Objection within 14 days. The Reference could not be filed until reasons were provided. Since reasons were never provided, time has not started running against the Applicant. In any event, the Applicant has sought enlargement of time in the alternative. 29. The fourth objection is that the application is an abuse of the Court process being a delay tactic. I find this objection to be without merit. The Applicant has demonstrated genuine grievances regarding the premature issuance of the Certificate of Costs and errors of principle in the taxation. The application is a legitimate attempt to protect his rights and cannot be characterized as an abuse of process. 30. In the upshot, the Applicant's Chamber Summons dated 26th August 2025 is merited and the same hereby allowed in the following terms: 1. ***The Certificate of Costs dated 29th July 2025 is hereby set aside.*** 2. ***The Ruling of the Taxing officer dated 20th June 2025 is hereby set aside.*** 3. ***The Advocate-Client Bill of Costs dated 31st July 2024 is hereby remitted for fresh taxation before a different Taxing Officer other than the one who delivered the ruling dated 20th June 2025.*** 4. ***The costs of this Application are awarded to the Applicant.*** **Dated, signed and delivered at Nakuru this 13th day of August, 2026** **J. K. SERGON** **JUDGE** **In the presence of:** Rutoh C/A Wambui holding brief for Nduati for Applicant Chaungu for the Respondent