https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3476

Narok County Government v Kemboy Law Advocates (Environment and Land Miscellaneous Application E003 of 2023) [2026] KEELC 3476 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEELC 3476 (KLR) Republic of Kenya In the Environment and Land Court at Narok Environment and Land Miscellaneous Application E003 of 2023 LN Gacheru, J May 14, 2026 Between Narok County Government Client and Kemboy Law Advocates Advocate Ruling 1.The matter for determination is a Reference by way of Chamber Summons Application dated 12th May 2025, brought under Paragraph 11(2) of the Advocates (Remuneration) Order 2014, by the Client/Applicant, Narok County Government, which challenges the decision of the Taxing Officer, delivered on 24th April 2025, in respect of taxation of an Advocate–Client Bill of Costs. 2.The Bill of Costs arose from legal services rendered by Kemboy Law Advocates, the Advocate/Respondent herein, in ELC Case No. 1 of 2018: Ole Sordo v County Government of Narok & 2 Others, wherein the Advocate defended the Client in a protracted land dispute involving allegations of unlawful demolition and claims for injunctive relief. 3.Upon conclusion of the said suit and termination of instructions, the Advocate filed an Advocate–Client Bill of Costs dated 4th July 2023, which was taxed at Kshs. 24,233,73/94, down from the claimed sum of Kshs. 28,875,83/.00. 4.The Client/Applicant being dissatisfied with the taxation, filed the present Reference, and contended that the Taxing Officer erred in principle and law in the assessment of instruction fees, application of Schedule VI of the Advocates (Remuneration) Order, allowance of disbursements, and application of a 50% increment on Advocate–Client costs. 5.The Advocate/ Respondent opposed the Reference/ Application by raising a Preliminary Objection dated 20th May 2025, which challenges the competence of the Reference on the basis that it was filed outside the timelines prescribed under Paragraph 11(2) of the Advocates (Remuneration) Order, and therefore allegedly incompetent and beyond the jurisdiction of the Court. 6.The Advocate/ Respondent further filed a Replying Affidavit sworn on 31st October 2025, and contended that the Taxing Officer properly exercised discretion under Schedule VI, and that the instruction fees and all taxed items were justified considering the complexity, importance, and duration of the matter. 7.The Client/Applicant herein, Narok County Government, filed a Chamber Summons pursuant to paragraph 11(2) of the Advocates (Remuneration) Order, 2014, seeking to challenge the ruling of the taxation master delivered on 24th April, 2025 by the Taxing Officer. In that ruling, the Advocate/Respondent’s Advocate–Client Bill of Costs dated 4th July, 2023 was taxed at Kshs. 24,233,733/94, down from a claimed Kshs. 28,875,83/00. 8.The application principally seeks orders that the said taxation ruling and consequential orders be set aside, and that the Bill of Costs be taxed afresh before a different taxing officer. The Client/ Applicant also seeks costs of the Reference too. 9.The Reference is supported by the following grounds; that the Taxing Officer erred both in law and in principle; that the Taxing Officer disregarded the provisions of Schedule 6 of the Advocates (Remuneration) Order; awarded excessive and unjustified sums; failed to consider the Client/ Applicant’s submissions; that instruction fees were improperly assessed at Kshs. 10,000,000/= without justification, and that there was a miscalculation and misapplication of the applicable formula in determining both instruction and getting-up fees. 10.Additionally, the Client/ Applicant faulted the Taxing Officer for allowing disbursements without proof; for declaring other items as properly drawn without justification, and for unlawfully increasing the taxed amount by 50% despite the absence of a taxed Party-and-Party Bill of Costs. 11.The Client/ Applicant averred that although a request for reasons for taxation was made on 30th April 2025, the Taxing Officer had not furnished the same, though a certified copy of the ruling had been supplied; that the errors complained of prejudice the Client/ Applicant, and risk occasioning injustice if the ruling is not interfered with. 12.The application is supported by John Mayiani Tuya, the County Secretary of Narok County Government vide his Supporting Affidavit sworn on 30th April 2025, who reiterated the grounds in support of the application. He confirmed the taxation of the Bill of Costs, and the subsequent dissatisfaction with the ruling of the taxing master. He deponed that the Client/ Applicant requested for reasons for taxation, and he annexed the correspondence and the certified ruling. He further deponed that based on information from counsel, that the Taxing Officer misapplied Schedule 6 of the Advocates (Remuneration) Order, awarded excessive fees, and failed to consider the Client/ Applicant’s submissions. 13.The deponent contended that the impugned taxation was erroneous and prejudicial to the Client/Applicant’s interests, and urged the Court to set aside the said ruling and direct a re-taxation before a different taxing officer in the interest of justice. 14.The Advocate/Respondent, Kemboy Law Advocates, filed a Notice of Preliminary Objection, challenging the competence of the Client/Applicant’s Chamber Summons Reference, herein, alleging that the said objection raises a pure point of law to be determined at the outset, namely that the Reference Application was filed outside the timelines prescribed under Paragraph 11(2) of the Advocates (Remuneration) Order. The Advocate/Respondent contended that the Reference/Application is incompetent, bad in law, and constitutes an abuse of the court process. 15.Consequently, the Advocate/ Respondent asserts that the Court lacks jurisdiction to entertain or determine the Reference/ Application. The Advocate/Respondent urged the court to dismiss the instant application/ Reference be in limine with costs. 16.Further, the Advocate/Respondent, through the Replying Affidavit of Julius K. Kemboy, opposed the Client/Applicant’s Chamber Summons Reference Application dated 12th May 2025 and urged the Court to dismiss the said Application with costs. 17.The deponent, averred that he had conduct of Narok ELC Case No. 1 of 2018 on behalf of the Client/Applicant and is therefore fully conversant with the matter and the Advocate–Client Bill of Costs dated 4th July 2023. He contended that the Reference/ Application herein is frivolous, vexatious, and an abuse of the court process, aimed at enabling the Client to evade its legal obligation to pay fees for services rendered. 18.In response to the Client/ Applicant’s complaints on taxation, the deponent maintained that the Taxing Officer properly exercised his discretion under Schedule 6 of the Advocates (Remuneration) Order, and asserted that the instruction fees of Kshs. 10,000,000/= were justified, having regard to the complexity of the matter, the nature and importance of the dispute, the time spent (approximately four years), and the responsibility borne by the Advocate in defending the Client in a claim involving demolition of property and injunctive reliefs. 19.Further, that where the value of the subject matter is not ascertainable from pleadings, judgment, or settlement, the Taxing Officer has unfettered discretion to assess instruction fees, and that such discretion was properly exercised in line with established principles and judicial precedent, including decisions of superior courts. 20.On the other items in the Bill of Costs, the deponent averred that the Taxing Officer expressly found them to be properly drawn to scale, and reasonable, having considered the relevant factors such as the nature of the matter, duration, and work involved. He denied the allegation that there was no justification for the taxation. 21.Regarding disbursements and other objections raised by the Client/Applicant, the deponent argued that such issues were not raised before the Taxing Officer and therefore cannot be introduced for the first time in the Reference. He claimed that adequate documentation had been provided to support all items in the Bill of Costs, including the logistical costs incurred in handling the matter between Nairobi and Narok. 22.On the issue of the 50% increase of costs, the deponent maintained that the Taxing Officer acted correctly under Part B of Schedule 6 of the Advocates (Remuneration) Order, which mandates that Advocate–Client costs be increased by 50%. He refuted the Client/ Applicant’s contention that such an increase is dependent on prior taxation of a Party-and-P bill of Costs, citing judicial authorities to support the position that the increase is automatic and lawful. 23.Finally, the deponent emphasized that a Reference from taxation is akin to an appellate process, and cannot entertain new issues not raised before the Taxing Officer. It was his conclusion that the Taxing Officer committed no error in law or principle, and therefore urged the Court to dismiss the Reference/ Application with costs. 24.The Reference was canvassed by way of written submissions. The Client/Applicant filed its submissions through Maina Ngaruiya & Co Advocates, and urged the court to allow the claim. The Advocate/ Respondent filed its submissions through Kemboy Law Advocates, and urged the court to allow the preliminary objection, and dismiss the client/Applicant’s Reference with costs. 25.In its opposition to the Preliminary Objection, the Client/Applicant filed written submissions dated 20th May 2025 and urged the court to dismiss the said objection. 26.At the outset, the Client/ Applicant submitted that the Preliminary Objection is misconceived, and lacks merit as the Reference was filed in strict compliance with Paragraph 11(1) and (2) of the Advocates (Remuneration) Order, 2014. The Client/ Applicant contended that upon being dissatisfied with the taxation ruling delivered on 24th April 2025 by the taxing master, it promptly issued a notice dated 30th April 2025, within the statutory 14-day period, seeking reasons for taxation and a certified copy of the ruling. 27.Further, that despite this request, the Taxing Officer failed to furnish written reasons, compelling the Client/ Applicant to rely on the ruling uploaded on the Judiciary Case Tracking System before filing the Reference on 12th May 2025. Therefore, the Client/Applicant maintained that the Reference was properly instituted within time and that any delay in obtaining reasons was not attributable to it. 28.In support of this position, reliance was placed on Paragraph 11(1) and (2) of the Advocates (Remuneration) Order, 2014, which requires a dissatisfied party to first request reasons before filing a Reference to the High Court. 29.The Client/ Applicant further submitted that Courts should not visit litigants with prejudice arising from administrative lapses beyond their control. It relied on the guiding principle in the case of D.T. Dobie & Company (Kenya) Ltd v Joseph Muchina & Another (1980) eKLR, where the court held that courts should lean towards sustaining suits rather than striking them out summarily, and that a suit should only be dismissed where it is hopeless and discloses no reasonable cause of action. 30.On the merits of the Reference, the Client/Applicant identified one issue for determination being; whether the Taxing Officer erred in law and principle in taxing the Advocate–Client Bill of Costs. 31.The Client/ Applicant relied on the principles governing judicial interference on taxation as set out in the case of Bank of Uganda v Banco Arabe Espanol, Civil Application No. 23 of 1999, and reaffirmed in Bank of Uganda v Sudhir Ruparelia & Another (Taxation Reference No. 1 of 2023) [2023] UGSC 12, where it was held that a court may interfere with a taxing officer’s discretion only where there is an error of principle or where the award is manifestly excessive or low resulting in injustice. 32.Further, the Client/Applicant relied on the case of Keziah Gathoni Supeyo v Yano t/a Yano & Co. Advocates [2019] eKLR, which adopts the principles in Premchand Raichand Ltd v Quarry Services of East Africa Ltd (1972 EA 162), which emphasized that costs must be fair, not oppressive, and that taxation must balance access to justice, fairness to advocates, and consistency in awards. The court in the above case further held that a taxing officer must exercise discretion judicially and that appellate interference is justified where the award is unjust. 33.On instruction fees, the Client/ Applicant argued that the Taxing Officer misdirected himself by awarding Kshs. 10,000,000/= without a proper breakdown or justification as required under the principles in Joreth Ltd v Kigano & Associates (2002) 1 EA 92, where the Court of Appeal held that instruction fees must be based on the value of the subject matter, or where not ascertainable, on relevant factors such as complexity, importance, and time spent. 34.Further reliance was placed on the case of Kyalo Mbobu t/a Kyalo & Associates Advocates v Jacob Juma [2015] eKLR and Republic v Minister for Agriculture & 2 Others ex parte Samuel Muchiri W’Njuguna & 6 Others [2006] eKLR, which stressed that a taxing officer must give specific, reasoned justification for enhancement of instruction fees, including care and labour, volume of documents, novelty, complexity, and importance of the matter. 35.The Client/Applicant further contended that the Taxing Officer failed to provide sufficient reasoning and instead relied on generalized factors, thereby violating the requirement for a reasoned exercise of discretion. 36.On the issue of the 50% increase of instruction fees, the Client/Applicant submitted that the Taxing Officer erred in law by applying Part B of Schedule VI of the Advocates (Remuneration) Order to an Advocate Client bill of Costs. Further, that the 50% enhancement only applies where Party and Party costs have been taxed, not in an Advocate–Client bill of costs. 37.Reliance was placed on the case of Nyangito & Co. Advocates v Doinyo Lessos Creameries Ltd [2014] eKLR, where Court held that the 50% increase under Part B is only applicable where Party and Party costs have been determined. The Client/ Applicant further relied on the case of Tom Ojienda & Associates Advocates v County Government of Narok (Misc. Application E608 of 2019) eKLR, where the court held that applying a 50% increase without prior taxation of Party and Party costs constituted an error in principle warranting interference. 38.Regarding other taxed items, the Client/ Applicant submitted that numerous items were either grossly exaggerated or not taxed in accordance with Schedule VI of the Advocates Remuneration Order, including service fees, attendances in court, mentions, registry services, and correspondence. Further, that the Taxing Officer erred in finding that these items were “drawn to scale” without proper assessment or justification. 39.In conclusion, the Client/ Applicant urged the Court to dismiss the Preliminary Objection, finds that the Reference is properly before the Court, and proceeds to allow the substantive application. Further, that the Taxing Officer committed errors of law and principle warranting judicial interference, and reliance was sought in the following cases; Joreth Ltd v Kigano & Associates (2002) 1 EA 92, Kyalo Mbobu v Jacob Juma [2015] eKLR, Republic v Minister for Agriculture ex parte Samuel Muchiri W’Njuguna [2006] eKLR, and Nyangito & Co. Advocates v Doinyo Lessos Creameries Ltd [2014] eKLR, to support its case for setting aside or remitting the taxation for fresh assessment. 40.The Advocate/Respondent through Kemboy Law Advocates, in opposing the Client/ Applicant’s Reference submitted that the dispute arose from legal services rendered between 2018 and 2022 in Narok ELC Case No. 1 of 2018, where the Advocate/Respondent defended the Client/ Applicant in a land dispute involving allegations of unlawful demolition and claims for injunctive and declaratory reliefs. Upon termination of instructions, the Advocate/ Respondent rendered a fee note which remained unpaid, prompting taxation of the Bill of Costs. The Taxing Officer ultimately awarded Kshs. 22,233,733/94 after considering submissions from both parties. 41.On the law, the Advocate/ Respondent submitted that the Reference is misconceived and that the Taxing Officer properly exercised discretion under Schedule 6 of the Advocates' Remuneration Order. Reliance was placed on the well-established principles in taxation that appellate courts will rarely interfere with a taxing officer’s discretion unless there is an error in principle, as stated in Premchand Raichand Ltd v Quarry Services of East Africa Ltd, which emphasizes that taxation must be fair, reasonable, and guided by judicial discretion, not mathematical precision. 42.Further reliance was placed on the case of Joreth Ltd v Kigano & Associates, where the Court of Appeal held that where the value of the subject matter is not ascertainable, the taxing officer is entitled to exercise discretion by considering factors such as complexity, importance of the matter, interest of parties, and conduct of proceedings. The Advocate/ Respondent also cited the Supreme Court decision the case of Kenya Airports Authority v Otieno Ragot & Co Advocates, which re-affirmed that instruction fees may be assessed based on relevant factors where the value of the subject matter is indeterminate. 43.The Advocate/ Respondent further relied on comparative authority, including Bank of Uganda v Banco Arabe Espanol, for the proposition that taxation is a specialist function of taxing officers and courts should not lightly interfere with their discretion, and in Republic v Minister of Agriculture ex parte Samuel Muchiri W’Njuguna, which emphasized that taxation involves a value judgment based on experience and judicial discretion. 44.On instruction fees specifically, the Advocate/ Respondent submitted that the Taxing Officer properly considered the complexity, duration, and importance of the land dispute, which involved substantial pleadings, multiple parties, and litigation spanning approximately four years. Further, that instruction fees were properly assessed in accordance with Schedule 6 of the Advocates Remuneration Order and judicial guidance in cases such as Jeremiah Muku v Methodist Church in Kenya Trustees Registered, which held that instruction fees are not determined solely by the value of subject matter, but also by labour, responsibility, and complexity. 45.On the 50% increment, the Advocate relied on Part B of Schedule 6 of the Advocates' Remuneration Order, which provides that Advocate–Client costs are increased by 50%. The Advocate/Respondent supported this with authorities including Kinyua Muyaa & Co Advocates v Kenya Ports Authority and Dennis KN Magare v Armajit Singh Gahir, which affirm that the 50% uplift is mandatory in Advocate–Client taxation and applies after assessment under Schedule 6(A). 46.On procedural objections, the Advocate/ Respondent submitted that the Reference is incompetent for being filed outside the 14 days prescribed under Paragraph 11(2) of the Advocates Remuneration Order, and without leave of court under Paragraph 11(4). Reliance was placed in the case of Multiline Motors (Kenya) Ltd v Migori County Government and Evans Thiga Gaturu v Kenya Commercial Bank Ltd, which emphasized that strict compliance with the Paragraph 11 procedures is mandatory, and failure to do so renders a reference incompetent. 47.Further reliance was placed in the case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors to support the Preliminary Objection on jurisdiction, arguing that the Court lacks jurisdiction due to non-compliance with mandatory procedural timelines. 48.In conclusion, the Advocate/ Respondent submitted that the Taxing Officer properly exercised discretion, correctly applied Schedule 6 of the Advocates' Remuneration Order, and lawfully awarded instruction fees and the 50% uplift. The Reference was therefore characterized as unmeritorious, procedurally defective, and an abuse of court process, and the Court was urged to dismiss it with costs. 49.Having considered the pleadings, affidavits, submissions, and authorities cited, the following issues arise for determination:i.Whether the Preliminary Objection challenging the competence of the Reference is merited;ii.Whether the Reference filed under Paragraph 11(2) of the Advocates (Remuneration) Order is competent;iii.Whether the Taxing Officer erred in principle and law in taxing the Advocate–Client Bill of Costs;iv.Whether this Court should interfere with the Taxing Officer’s exercise of discretion;v.What orders should issue. Analysis And Determination 50.On Whether the Preliminary Objection is merited, the Advocate/Respondent contended that the Reference is incompetent for having been filed outside the statutory timelines under Paragraph 11(2) of the Advocates (Remuneration) Order. 51.The nature of a Preliminary Objection was clearly set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where the Court held that; a Preliminary Objection must raise a pure point of law which is argued on the assumption that all facts pleaded are correct. 52.In the present case, the determination of whether the Reference was filed within time requires interrogation of factual issues relating to when reasons were supplied or whether they were supplied at all. Such inquiry goes beyond a pure point of law. 53.The Court in Kigwilu v Attorney General [2019] eKLR held that where the determination of limitation requires factual interrogation, such objection cannot qualify as a Preliminary Objection. 54.Further, Paragraph 11(1) and (2) of the Advocates (Remuneration) Order requires a party to first request reasons for taxation before filing a Reference. The Client/ Applicant has demonstrated that a request for reasons was made on 30th April 2025, but was not supplied the soonest. 55.In the case of Twiga Motor & Transporters Ltd v Allan Maranga t/a Allan & Company Advocates [2016] eKLR, the Court held that failure by a taxing officer to furnish reasons cannot be visited upon a litigant by striking out a Reference. Accordingly, the Preliminary Objection herein is found to lack merit and is hereby dismissed. 56.On Whether the Reference is competent, Paragraph 11(2) of the Advocates (Remuneration) Order provides that a party dissatisfied with taxation must file a Reference within 14 days of receipt of reasons. Where reasons are not supplied, courts have held that the ruling itself forms a sufficient basis for filing a Reference. 57.In Njeru Nyaga & Co. Advocates v Kenya Planters Co-operative Union [2019] eKLR, the Court held that failure by a taxing officer to provide reasons does not bar a party from filing a reference where the ruling is available. 58.Similarly, in Ahmednasir Abdikadir & Co. Advocates v National Bank of Kenya Ltd [2006] eKLR, the Court emphasized that procedural technicalities should not override substantive justice where a litigant has acted diligently. 59.The Client /Applicant demonstrated that it sought reasons timeously and filed the Reference relying on the ruling available in the Judiciary Case Tracking System. The Court is therefore satisfied that the Reference is properly before it. 60.Whether the Taxing Officer erred in principle and law. It is well established that taxation is an exercise of judicial discretion. The guiding principles for interference with taxation were set out in Premchand Raichand Ltd v Quarry Services of East Africa Ltd (1972) EA 162, where the Court held that costs must not be so high as to be a burden on access to justice, nor so low as to be unrealistic. 61.The Court of Appeal in the case of Joreth Ltd v Kigano & Associates [2002] 1 EA 92, held that where the value of the subject matter is not ascertainable, the taxing officer must consider factors such as complexity, responsibility, time, and importance of the matter. 62.Interference is only justified where there is an error of principle, as held in the case of Bank of Uganda v Banco Arabe Espanol (2002) EA 333. 63.On Instruction fees, the central complaint is that instruction fees of Kshs. 10,000,000/= was excessive and not justified. Where the value of subject matter is not ascertainable, the taxing officer must rely on discretion guided by relevant factors. 64.In Republic v Minister for Agriculture ex parte Samuel Muchiri W’Njuguna [2006] eKLR, the Court held that failure to give reasons for enhancement of instruction fees constitutes an error of principle. In the present case, the Taxing Officer considered the complexity of the land dispute, the duration of litigation (approximately four years), and multiple interlocutory applications. 65.The Court in the case of Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR, held that complexity and responsibility are valid considerations in determining instruction fees. 66.Having considered the available pleadings, and the impugned ruling, this Court finds no demonstrated misdirection in principle in the award of instruction fees. 67.On 50% increase under Schedule VI, the Client/ Applicant contended that the 50% increment was wrongly applied. Part B of Schedule VI of the Advocates (Remuneration) Order provides that Advocate–Client costs are increased by 50%. 68.In the case of Nyangito & Co. Advocates v Doinyo Lessos Creameries Ltd [2014] eKLR, the Court held that Advocate–Client costs are properly enhanced by 50% once taxation is done under Schedule VI. 69.Similarly, in the case of Kinyua Muyaa & Co. Advocates v Kenya Ports Authority [2017] eKLR, the Court affirmed that the 50% uplift is automatic and not dependent on prior taxation of party-and-party costs. The Court therefore finds no error in principle. 70.On Disbursements and other items, the Client/Applicant alleged lack of proof for disbursements and misapplication of Schedule VI. However, it is trite that a taxing officer’s factual findings are only interfered with where there is demonstrable error. 71.In the case of D Njogu & Co. Advocates v Panafcon Ltd [2006] eKLR, the Court held that the taxing officer is best placed to assess the reasonableness of items unless clearly shown to be excessive or unsupported. This Court finds that no sufficient evidence has been placed before this Court to demonstrate misapprehension of facts. 72.Whether the Court should interfere with taxation, from the foregoing, this Court is guided by the principle that it will only interfere with taxation only where there is an error of principle, or where the award is manifestly excessive or low as to amount to injustice. See the case of Bank of Uganda v Banco Arabe Espanol (2002) EA 333 and Premchand Raichand Ltd (supra). 73.The Client/Applicant has failed to demonstrate any material error of principle to warrant this court to interfere the taxation ruling of the taxing master dated 24th April 2025. 74.In conclusion, the Court finds and holds that:i.The Preliminary Objection is without merit and is hereby dismissed;ii.The Reference is competent and properly before this Court;iii.The Taxing Officer did not err in principle or law in taxing the Advocate–Client Bill of Costs;iv.There is no basis for this Court to interfere with the exercise of discretion by the Taxing Officer. 75.Consequently, the Chamber Summons Reference dated 12th May 2025 is found not merited, and is hereby dismissed, with costs to the Advocate/Respondent. It is so ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAROK, THIS 14TH DAY OF MAY 2026.L. GACHERUJUDGE14/05/2026Delivered online the presence ofElijah Meyoki…Court AssistantMs. Lyona H/B for Mr. Maina Ngaruiya for the Client/ApplicantMr. Otieno H/B for Mr. Kere for the Advocate/Respondent.L. GACHERUJUDGE14/05/2026