https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9588

Nyang’au v Law Society of Kenya & 2 others (Petition E051 of 2022) [2026] KEHC 9588 (KLR) (Constitutional and Human Rights) (10 June 2026) (Ruling) Neutral citation: [2026] KEHC 9588 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E051 of 2022 B Mwamuye, J June 10, 2026 Between Leo Masore Nyang’au Petitioner and Law Society of Kenya 1st Respondent Advocates Disciplinary Tribunal 2nd Respondent Suleiman K. Murunga 3rd Respondent (On Petitioner’s Chamber Summons dated 7th October 2025) Ruling Introduction 1.Before this Court for determination is the Chamber Summons application dated 7th October 2025, brought by the Petitioner/Applicant, Leo Masore Nyang’au, pursuant to Paragraph 11(1) and (2) of the Advocates (Remuneration) Order, 2014, Rule 26 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, and Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act. By the said application, the Applicant challenges the decision of the Taxing Master, Hon. Judith Omollo, delivered on 26th September 2025, by which the 1st and 2nd Respondents’ Party and Party Bill of Costs dated 11th March 2025 was taxed at KShs. 134,110/-, with instruction fees under Item No. 1 assessed at KShs. 100,000/-. 2.The Applicant seeks orders that there be a stay of execution of the said ruling and any consequential Certificate of Taxation pending the hearing and determination of this reference; that the Taxing Master's decision on instruction fees be set aside in its entirety; that the matter be remitted to a different Taxing Master for the re-taxation of Item No. 1 with appropriate directions or, in the alternative, that this Court do proceed to re-tax Item No. 1 of the Bill of Costs. The application is opposed by the 1st and 2nd Respondents through a Replying Affidavit sworn by Felix Muuo on 23rd October 2025, to which the Applicant responded by way of a Supplementary Affidavit sworn on 24th October 2025. The Applicant/Petitioner’s Case 3.The Applicant challenges the taxation of Item No. 1 of the 1st and 2nd Respondents' Party and Party Bill of Costs. He submits that he instituted these proceedings by way of a Constitutional Petition dated 4th February 2022, contemporaneously with a Notice of Motion dated 7th February 2022, seeking various constitutional and interlocutory reliefs against the Respondents. Following the Taxing Master's ruling delivered on 26th September 2025, the Applicant lodged the present Chamber Summons dated 7th October 2025, supported by his affidavit sworn on the same date. The application was opposed through the Replying Affidavit of Felix Muuo sworn on 23rd October 2025, to which the Applicant responded by a Supplementary Affidavit sworn on 24th October 2025. The gravamen of the Applicant's complaint is that the Taxing Master misdirected herself both in law and in principle in awarding instruction fees of KShs. 100,000/-, an award which he contends was manifestly excessive and wholly disproportionate to the nature and extent of the work undertaken by the 1st and 2nd Respondents. 4.The Applicant challenges the taxation of Item No. 1 of the 1st and 2nd Respondents' Party and Party Bill of Costs, contending that the Taxing Master misdirected herself both in law and in principle in awarding instruction fees of KShs. 100,000/-. He submits that the award was manifestly excessive and wholly disproportionate to the nature of the work undertaken by the 1st and 2nd Respondents. 5.It is the Applicant's case that, although the 1st and 2nd Respondents entered appearance by filing a Notice of Appointment of Advocates, they neither filed a Replying Affidavit, Grounds of Opposition, nor any substantive response to either the Notice of Motion or the Petition. Equally, they did not file written submissions when the 3rd Respondent's Preliminary Objection was canvassed. Consequently, the Applicant contends that the Taxing Master erred in proceeding on the mistaken premise that the 1st and 2nd Respondents had opposed the proceedings and had undertaken work warranting instruction fees under Schedule 6 Paragraph 1(j)(ii) of the Advocates (Remuneration) (Amendment) Order, 2014. 6.According to the Applicant, the applicable provision was Schedule 6 Paragraph 1(j)(i), which governs matters that are not opposed and prescribes a minimum instruction fee of KShs. 45,000/-. It is submitted that, in the absence of any defence or other denial of liability by the 1st and 2nd Respondents, the Taxing Master improperly invoked the higher scale applicable to opposed proceedings. 7.The Applicant further argues that the Taxing Master erroneously attributed to the 1st and 2nd Respondents the time and labour allegedly expended in preparing responses to the application and the Preliminary Objection, notwithstanding that no such responses were ever filed. In his view, the considerations of complexity, novelty, time and labour contemplated under Schedule 6 Paragraph 1(j)(ii) were wholly inapplicable to the circumstances of the case. 8.It is submitted that even if the 1st and 2nd Respondents were deemed to have aligned themselves with the 3rd Respondent's Preliminary Objection, such conduct did not amount to filing a defence or other denial of liability. Reliance is placed on Schedule 6 Paragraph 1(c) of the Advocates (Remuneration) Order, which, according to the Applicant, provides that where a defendant substantially adopts another defendant's defence, the applicable instruction fee remains that prescribed under Paragraph 1(a), namely, where no defence or denial of liability has been filed. 9.The Applicant further contends that the Petition was disposed of summarily upon the Court upholding the 3rd Respondent's Preliminary Objection without proceeding to a full hearing. It is therefore argued that the Taxing Master failed to give effect to Schedule 6 Paragraph 1(b) of the Advocates (Remuneration) Order, which requires the applicable instruction fee to be reduced where proceedings are determined summarily before trial. On that basis, the Applicant submits that the appropriate instruction fee ought to have been discounted accordingly. 10.The Applicant argues that the impugned award undermines the constitutional imperative of facilitating access to justice under Article 48 of the Constitution, as reinforced by Rule 26 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules. The Applicant argues that taxation must result in costs that are fair, reasonable and commensurate with the work actually undertaken. 11.Reliance is placed on Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd & Others (1972) EA 162 and Joreth Limited v Kigano & Associates [2002] eKLR for the settled principles governing taxation of costs, Ratemo Oira & Co. Advocates v Magereza Sacco Society Ltd [2019] eKLR for the proposition that an advocate is entitled only to reasonable fees commensurate with the work performed and Construction & Petroleum Engineering (E.A.) Ltd v Uganda Sugar Factory Ltd (1970) EA 141 in support of the Court's jurisdiction to re-tax a bill of costs or remit the matter for re-taxation where the Taxing Master has acted on an error of principle. 12.On the foregoing grounds, the Applicant urges the Court to find that the Taxing Master exercised her discretion on wrong principles, set aside the taxation of Item No. 1, and either remit the Bill for re-taxation before a different Taxing Master with appropriate directions or, in the alternative, proceed to re-tax the instruction fee. The 1st and 2nd Respondents’ Case 13.The 1st and 2nd Respondents oppose the Chamber Summons through the Replying Affidavit of Felix Muuo sworn on 23rd October 2025 and their written submissions dated 6th November 2025. They contend that the Applicant has failed to establish any basis upon which this Court may interfere with the discretion exercised by the learned Taxing Master in taxing their Party and Party Bill of Costs dated 11th March 2025. 14.The Respondents submit that they instructed the firm of Mulekyo & Company Advocates on 28th April 2022 to represent them in the constitutional petition. They further state that although the Notice of Preliminary Objection dated 22nd February 2022 was filed by the 3rd Respondent, they fully associated themselves with and supported the objection, which ultimately culminated in the dismissal of the Petition for want of jurisdiction by the Court's ruling delivered on 17th February 2023. Following that determination, they lodged their Party and Party Bill of Costs dated 11th March 2025, which was taxed on 26th September 2025 in the sum of KShs. 134,110/-. 15.It is the Respondents' contention that the taxation of instruction fees is a matter resting within the discretion of the Taxing Master and that such discretion ought not to be disturbed unless it is demonstrated that the taxing officer acted upon a wrong principle of law or awarded a sum so manifestly excessive or inordinately low as to occasion an injustice. They maintain that the Applicant has merely expressed dissatisfaction with the quantum awarded without identifying any discernible error of principle. 16.The Respondents reject the Applicant's assertion that the Petition was unopposed. They submit that the proceedings were actively defended through the 3rd Respondent's Notice of Preliminary Objection, which they fully supported and which successfully disposed of the entire Petition. In their view, such participation constituted a substantive defence of the proceedings and entitled them to instruction fees under Schedule 6 Paragraph 1(j)(ii) of the Advocates (Remuneration) (Amendment) Order, 2014. Consequently, they contend that the learned Taxing Master correctly declined to assess instruction fees under the scale applicable to unopposed matters. 17.The Respondents further submit that the Applicant's argument for a reduction of instruction fees under Schedule 6 Paragraph 1(b) is misconceived. They argue that the fact that the Petition was disposed of through a Preliminary Objection did not render the proceedings undefended. Rather, the successful jurisdictional objection constituted an active defence which required legal research, preparation and professional responsibility on the part of their advocates, thereby justifying the instruction fee awarded. 18.According to the Respondents instruction fees are not exclusively dependent upon the filing of a Replying Affidavit or other substantive pleadings but are equally earned through meaningful participation in proceedings, including the prosecution or support of preliminary objections capable of determining the suit. They therefore submit that the learned Taxing Master properly considered the nature of the constitutional questions raised, the importance of the proceedings, the responsibility assumed by counsel and the work undertaken before arriving at the impugned award. 19.In support of their position, reliance is placed on Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd & Another (1972) EA 162 and First American Bank of Kenya v Shah & Others [2002] 1 EA 64 for the settled principle that a court will only interfere with a taxation where the Taxing Master acted on a wrong principle or where the award is so manifestly excessive or low as to amount to an injustice. 20.Further reliance is placed on J.G. Kariuki v Hannah Mandi Etiang [2022] KEHC 1030 for the proposition that where the value of the subject matter is not ascertainable, the taxing officer is entitled to exercise discretion, taking into account the nature and importance of the cause, the interests of the parties, the conduct of the proceedings and all other relevant circumstances. The Respondnets invoke Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 in support of the proposition that a preliminary objection, being a pure point of law capable of disposing of a suit, constitutes a substantive defence of proceedings. 21.The Respondents urge the Court to find that the learned Taxing Master exercised her discretion judiciously and in accordance with the applicable principles of law, that no error of principle has been demonstrated, and that the Applicant's reference is devoid of merit. They accordingly pray that the Chamber Summons dated 7th October 2025 be dismissed with costs.. Analysis and Determination 22.Having carefully considered the Chamber Summons dated 7th October 2025, the affidavits filed by the respective parties, the written submissions, the impugned ruling of the learned Taxing Master delivered on 26th September 2025, and the applicable law. In my view, the issues falling for determination are the following:i.Whether the learned Taxing Master erred in principle in assessing instruction fees under Item 1 of the 1st and 2nd Respondents' Party and Party Bill of Costs.ii.Whether the award of KShs.100,000/= as instruction fees was so manifestly excessive as to warrant interference by this Court.iii.Whether this Court should remit the Bill of Costs for re-taxation or proceed to re-tax Item 1 itself. Whether the learned Taxing Master erred in principle in assessing instruction fees under Item 1 of the 1st and 2nd Respondents' Party and Party Bill of Costs. 23.The jurisdiction of this Court on a reference from a taxing officer is circumscribed by Paragraph 11 of the Advocates (Remuneration) Order. It is now settled that a Judge does not sit on appeal over the taxing officer's exercise of discretion and will not interfere merely because he or she would have reached a different conclusion. Interference with the discretion of the Taxing Officer is only warranted where it is demonstrated that the Taxing Officer proceeded on an error of principle, took into account factors unrelated to the assessment of costs, failed to take into account relevant matters, or arrived at an award that is so manifestly excessive or inordinately low as to amount to an injustice. 24.The foregoing principles have long been settled. In Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd & Another (1972) EA 162, the Court observed that taxation is not a mathematical exercise but one dependent upon the taxing officer's experience and sound judicial discretion. Likewise, in Kipkorir, Tito & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR, the Court of Appeal reiterated that a Judge should not interfere with the taxing officer's discretion unless an error of principle is demonstrated. 25.It is equally settled that where a taxing officer fails to apply the applicable provisions of the Advocates (Remuneration) Order or proceeds on an erroneous appreciation of the applicable schedule, such misdirection constitutes an error of principle warranting the intervention of the Court. In Kamunyori & Company Advocates v Development Bank of Kenya Limited Civil Appeal No. 206 of 2006 [2015] eKLR, the Court observed that a failure to ascertain the correct basis upon which instruction fees are to be assessed, including the value of the subject matter where ascertainable, amounts to an error of principle. The same principle applies where a taxing officer proceeds under an inapplicable provision of the Remuneration Order. 26.The gravamen of the present reference is the learned Taxing Master's finding that the Petition was "opposed" and that the applicable minimum instruction fee was therefore KShs.100,000/= under Schedule 6 Paragraph 1(j)(ii) of the Advocates (Remuneration) (Amendment) Order, 2014. 27.The Court has carefully examined the record of the proceedings. It is common ground that the 1st and 2nd Respondents filed a Notice of Appointment of Advocates dated 28th April 2022, which was lodged in Court on 5th May 2022. Beyond that, however, they did not file a Replying Affidavit, Grounds of Opposition, a response to the Petition, written submissions, or any other pleading in opposition to either the Notice of Motion or the Petition. Equally, there is no document on the court record demonstrating that they formally associated themselves with or adopted the 3rd Respondent's Notice of Preliminary Objection dated 22nd February 2022. 28.The Respondents contend that they supported the Preliminary Objection filed by the 3rd Respondent and that such support constituted active participation in the proceedings. While that assertion has been made in the Replying Affidavit, the Court is unable to identify any procedural step on the record through which such support was manifested. Entitlement to instruction fees is assessed on the basis of the professional responsibility assumed and the work demonstrably undertaken in the proceedings. The court record remains the primary basis upon which that assessment must be undertaken. 29.I am therefore unable, to agree with the learned Taxing Master's conclusion that the proceedings were opposed by the 1st and 2nd Respondents within the contemplation of Schedule 6 Paragraph 1(j)(ii). The record demonstrates opposition by the 3rd Respondent through the Preliminary Objection. It does not demonstrate any comparable participation by the 1st and 2nd Respondents beyond entering appearance. In those circumstances, the learned Taxing Master proceeded on an erroneous factual premise in assessing the applicable instruction fee. 30.The Respondents have relied on J.G. Kariuki v Hannah Mandi Etiang [2022] KEHC 1030 for the proposition that instruction fees are earned by reason of the professional responsibility undertaken by counsel and are not dependent solely upon the pleadings filed. I agree with that statement of principle. However, that authority does not diminish the obligation of the taxing officer to assess instruction fees having regard to the actual nature and extent of counsel's participation in the proceedings. Each taxation must ultimately turn on its own facts. 31.The Court further notes that the learned Taxing Master expressly found that the Petition was disposed of upon a Preliminary Objection before proceeding to a full hearing. Having reached that conclusion, it became necessary to consider the effect of Schedule 6 Paragraph 1(b) of the Advocates (Remuneration) Order, which addresses the assessment of instruction fees where proceedings are determined summarily without proceeding to a full trial. The impugned ruling does not disclose any consideration of that provision notwithstanding the acknowledged manner in which the proceedings were concluded. 32.The Respondents have urged the Court to find that Paragraph 1(b) is inapplicable because the proceedings were actively defended through a Preliminary Objection. I am unable to accept so restrictive an interpretation. The language employed under Paragraph 1(b) refers to suits determined "in a summary manner in any manner whatsoever without going to full trial." Those words are of broad import and require consideration wherever proceedings terminate before a full hearing, including where disposal is achieved through a successful Preliminary Objection. Whether the ultimate effect of that provision is to reduce the instruction fee is a matter for proper application of the Remuneration Order, but it is a relevant consideration which the taxing officer was obliged to address. The omission to consider it constituted a further error of principle. Whether the award of KShs.100,000/= as instruction fees was so manifestly excessive as to warrant interference by this Court 33.Having found that the learned Taxing Master proceeded on an erroneous appreciation of the applicable provisions of Schedule 6 of the Advocates (Remuneration) Order, the Court must now consider whether the resulting award of KShs.100,000/= as instruction fees was so excessive as to warrant interference. 34.The principles governing assessment of instruction fees are now well settled. In Joreth Ltd v Kigano & Associates supra, the Court of Appeal held that instruction fees are earned upon receipt of instructions and constitute an independent and static item of costs. The Court further observed that where the value of the subject matter cannot be ascertained from the pleadings, judgment or settlement, the taxing officer is required to exercise discretion judiciously, taking into account, among other factors, the nature and importance of the cause, the interests of the parties, the general conduct of the proceedings, any directions by the trial court, and all other relevant circumstances. 35.Equally instructive is the decision in First American Bank of Kenya Ltd v Shah & Others [2002] 1 EA 64, where Ringera J. (as he then was) held that a court will interfere with the exercise of a taxing officer's discretion where it is shown that the taxing officer acted on an error of principle, failed to consider relevant factors, took into account irrelevant considerations, or awarded a fee that is so manifestly excessive or so inordinately low as to justify an inference that the discretion was not properly exercised. 36.Applying those principles to the present case, it is evident that although the 1st and 2nd Respondents were entitled to instruction fees upon being retained, the quantum awarded had to bear a reasonable relationship to the professional responsibility assumed and the work actually undertaken. The court record demonstrates that their participation in the proceedings was confined to filing a Notice of Appointment of Advocates dated 28th April 2022, which was filed on 5th May 2022. They filed no Replying Affidavit, no Grounds of Opposition, no response to the Petition, no written submissions, and no independent Preliminary Objection. The Petition was ultimately disposed of upon the Preliminary Objection raised by the 3rd Respondent. The question therefore is not whether instruction fees were payable, but whether the sum allowed was proportionate to the services rendered. 37.This Court does not suggest that the filing of substantive pleadings is the sole determinant of instruction fees. An advocate earns instruction fees upon accepting instructions and assuming professional responsibility for the conduct of a matter. Nevertheless, the extent of counsel's participation remains a relevant consideration in determining whether the amount allowed is reasonable in the circumstances of a particular case. That discretion must always be exercised judiciously and upon a proper appreciation of the facts appearing on the court record. 38.In Ratemo Oira & Co. Advocates v Magereza Sacco Society Ltd [2019] eKLR, the Court emphasized that an advocate is entitled to a reasonable fee commensurate with the work performed. The assessment of instruction fees must therefore strike a fair balance between adequately compensating counsel for professional services rendered and avoiding awards that are disproportionate to the nature and extent of the work undertaken. 39.In the instant case, the learned Taxing Master assessed instruction fees on the footing that the proceedings were opposed by the 1st and 2nd Respondents and consequently awarded the minimum fee prescribed under Schedule 6 Paragraph 1(j)(ii). Having found that the learned Taxing Master proceeded upon an erroneous factual and legal premise, the foundation upon which that assessment rested cannot be sustained. The award of KShs.100,000/= therefore ceased to represent a proper exercise of discretion. Further, having regard to the limited participation of the 1st and 2nd Respondents and the manner in which the proceedings were determined, the amount awarded was manifestly excessive and disproportionate. 40.The Court is equally mindful of the constitutional imperative of access to justice under Article 48 of the Constitution, as reinforced by Rule 26 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules. While advocates are entitled to fair remuneration for professional services rendered, taxation must maintain a proper balance between compensating counsel and ensuring that costs remain reasonable, proportionate and not oppressive to litigant. 41.In the premises, I am satisfied that the award of KShs.100,000/= as instruction fees was founded upon errors of principle and was manifestly excessive having regard to the nature of the proceedings and the extent of the participation of the 1st and 2nd Respondents. The award is therefore liable to be set aside. Whether this Court should remit the Bill of Costs for re-taxation or proceed to re-tax Item 1 itself 42.Having found that the learned Taxing Master fell into error in principle, the Court must now determine the appropriate relief. The general position is that where a taxing officer has proceeded on an erroneous principle, the matter ought ordinarily to be remitted to the taxing officer for fresh consideration. This is because taxation is primarily within the province of the taxing officer, whose discretion is to be exercised within the framework of the Advocates (Remuneration) Order. 43.However, that principle is not absolute. The Court retains jurisdiction to re-tax an item where the circumstances justify such intervention, particularly where the relevant facts are undisputed, the applicable principles are clear, and remitting the matter would only occasion unnecessary delay and expense. In Steel & Petroleum (E.A.) Ltd v Uganda Sugar Factory (1970) EA 141, the Court recognised that a Judge has jurisdiction, in an appropriate case, to reassess costs. Similarly, in First American Bank of Kenya Ltd v Shah & Others [2002] 1 EA 64, the Court held that although the normal practice where an error of principle is established is to remit the matter back to the Taxing Officer for reassessment, the Court retains discretion to determine the issue itself where the circumstances of the case render a further reference unnecessary or where the error identified could not materially affect the assessment 44.In the present case, the material facts are not in dispute. The record clearly demonstrates the extent of the 1st and 2nd Respondents' participation in the proceedings. The applicable provisions of Schedule 6 of the Advocates (Remuneration) Order are also clear. The error identified by this Court relates not to any disputed factual assessment requiring further inquiry, but to the application of the correct legal principles to undisputed facts. 45.In those circumstances, I am satisfied that remitting the matter for re-taxation would serve no useful purpose and would only prolong the final determination of the costs herein. The Court therefore finds it appropriate, in the exercise of its discretion, to proceed to re-tax Item 1. 46.Accordingly, the taxation of Item 1 is hereby set aside and substituted with an award assessed under Schedule 6 Paragraph 1(j)(i) of the Advocates (Remuneration) Order, as read with Paragraph 1(b) thereof. The instruction fee is therefore assessed at KShs.33,750/=. The remaining items in the Bill of Costs, not having been challenged, shall remain undisturbed. 47.The Deputy Registrar shall issue a fresh Certificate of Taxation reflecting the variation herein. Conclusion 48.For the reasons set out above, this Court finds that the Taxing Master erred in principle by applying Schedule 6 Paragraph 1(j)(ii) instead of Paragraph 1(j)(i), by finding that the 1st and 2nd Respondents opposed the Petition when they filed no responsive pleadings or submissions, and by failing to apply the mandatory 25% discount under Paragraph 1(b) for summary determination. The award of KShs.100,000/- as instruction fees is manifestly excessive and is set aside. The Applicant’s Chamber Summons dated 7th October 2025 therefore succeeds in part. 49.Accordingly, this Court makes the following final orders:a.The Taxing Master’s ruling delivered on 26th September 2025 is hereby varied to the extent that Item 1 (instruction fees) is set aside and substituted with instruction fees of KShs.33,750/-.b.The 1st and 2nd Respondents’ Party and Party Bill of Costs dated 11th March 2025 shall be recomputed by the Deputy Registrar on the basis that instruction fees are allowed at KShs.33,750/-, with all other items as taxed by the Taxing Master on 26th September 2025 remaining unchanged.c.A fresh Certificate of Taxation shall issue reflecting the recomputed total.d.The stay of execution granted pending the hearing of this reference is hereby discharged.e.Given the nature of the dispute and the fact that the reference has succeeded in part, each party shall bear their own costs of this reference.Orders accordingly. File closed accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 10TH DAY OF JUNE 2026.BAHATI MWAMUYE MBSJUDGE