Onyinkwa L & another t/a Onyikwa & Co Advocates v Monarch Insurance Company Ltd (Civil Miscellaneous Application E010 of 2025) [2026] KEHC 12165 (KLR) (28 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAPENGURIA** **HC. CIVIL MISC. APPLICATION NO. E010 OF 2025** **ONYINKWA I. & D. ONYINKWA** **T/A ONYIKWA & CO. ADVOCATES …………………….. APPLICANT** * **V E R S U S –** **MONARCH INSURANCE COMPANY LIMITED …….. RESPONDENT** **R U L I N G** 1. By the Notice of Motion dated 22/11/2025, and filed in court on 23/1/2026 the applicant I. Onyinkwa and D. Onyinkwa T/A Onyinkwa & Company Advocates sought the following orders ;- 2. Spent 3. That the Court be pleased to order that the certificate of costs issued on 17/11/2025 to the applicant, as against the Respondent, be converted and/or adopted as the judgment and decree of this court and consequently, a Judgment be entered for the applicant against the Respondent for Kshs.287,489.75 4. That interest does accrue on the sum of Kshs. 287.489.75 at the rate of 14% per annum, with effect from 19/9/2025 (The date of filing Advocates -client bill of costs) until payment in full as prescribed under paragraph 7 part 1 of the Advocates Remuneration Order. 5. That the costs of this application be provided for. 6. In response, the Respondent filed a notice of preliminary objection dated 24/3/2026. The objection contained the following points: - 7. That the application dated 23/1/2021 is premature, incompetent and an abuse of the court process as the Respondent duly lodged a Notice of objection to taxation under paragraph 11(1) of the Advocates Remuneration Order, thereby lawfully invoking the statutory mechanism for challenging the taxation; 8. That the Taxing Officer has not furnished reasons for the taxation as required under paragraph 11(2) and the Respondent’s right to file a reference has therefore not crystalized rendering the current application procedurally improper; 9. That the applicant’s invocation of Section 51 (2) of the Advocates Act at this stage is misplaced and premature, as the taxation process remains incomplete and under challenge within the meaning and spirit of paragraph 11 of the Advocates Remuneration order. 10. That the application offends the mandatory statutory procedure governing objections to taxation and seeks to grant and defeat the Respondent’s right to challenge the taxed Bill of Costs. 11. That allowing the application would amount to sanctioning a denial of the Respondent’s statutory right to challenge taxation and would occasion a miscarriage of justice. 12. The court directed that the preliminary Objection be canvassed through written submissions and both parties filed their respective submissions. 13. The Respondent filed their submissions in support of the preliminary objection and are dated 8/6/2026. The preliminary objection dated 24/3/2026 raises four (4) grounds namely 14. **That the application is premature, incompetent, and an abuse of the court process as the respondent lodged a Notice of objection to Taxation pursuant to paragraph 11(1) of the Advocates Remuneration Order (ARO);** 15. **That the taxing officer has not furnished reasons for the taxation as required under paragraph 11(2) and the Respondents right to file a reference has therefore not crystalized, rendering the present application procedurally improper;** 16. **That the Applicants invocation of Section 51(2) of the Advocates Act at this stage is misplaced and premature as the taxation process remains incomplete and under challenge within the meaning and spirit of paragraph 11 of the Advocates Remuneration Order;** 17. **That the application offends the mandatory statutory procedure governing objection to taxation and seeks to circumvent and defeat the Respondent’s right to challenge the taxed bill of costs;** 18. **That allowing the application wanted amount to sanctioning a demand of the Respondent’s statutory right to challenge taxation and would occasion a miscarriage of justice.** 19. Samson Munene Advocate Counsel for the Respondent filed their submissions on the preliminary objection on 8/6/2026. 20. The first issue argued by Counsel was **whether the preliminary objection is properly before the court;** Counsel relying on the celebrated case of **Mukisa Biscuit Manufacturing Company Limited -V- West End Distributors Limited (1969) EA 695, submitted** that the issues raised on the Preliminary Objection concern interpretation of paragraph 11 of the Advocates Remuneration Order and Section 51 (2) of the Advocates Act; 1. That the Preliminary Objection does not require the court to ascertain any contested facts or evaluate evidence but calls on the court to determine whether the applicant has followed the correct procedure when filing the instant application and hence a pure point of law. 2. **Whether the application is premature**, **incompetent and an abuse of the court process;** Counsel submitted that a party dissatisfied with the taxation is allowed under paragraph 11 (1) of the Advocates Remuneration Order to issue notice of objection specifying the items objected to within the specified time; 3. That under paragraph 11 (2), ARO upon receipt of the notice, the taxing officer has to record and furnish the reasons for the taxation to enable the party to file a reference before a Judge; 4. That the Respondent lodged the objection thus lawfully challenging the taxation; 5. That the taxation was subject to the procedure provided under paragraph 11 of the Advocates Remuneration Order; that so far, the taxing officer has not furnished the reasons contemplated under paragraph 11(2) and hence the Respondent is prevented from taking any other procedural step of filing a reference; 6. That the taxation process is still incomplete and its premature for the applicant to seek judgment under Section 51 (2) of the Advocates Act and that allowing the application for Judgment would defeat the Respondent’s right to challenge the taxation; 7. **Whether the applicant’s invocation of Section 51 (2) of the Advocates Act is premature;** Counsel observed that the applicant’s application is founded on section 51(2) of the Advocates Act which compels the court to enter judgment on a certificate of taxation; 1. That however, that section must be read with paragraph 11 of the Advocates Remuneration Order by following the procedure provided thereunder for challenge of taxation if a party is dissatisfied. 2. **Whether the applicant will suffer prejudice,** it was submitted that none will be suffered by the applicant if due process is followed, but to the contrary, the Respondent will suffer substantial prejudice if he will not be heard on the objection and would be shut out from exercising his right to be heard. 3. On who should pay the costs, it is the Respondents contention that the applicant rushed to court with a premature and incompetent application and should bear the costs of the preliminary objection. 4. The applicants filed submissions dated 5/5/2026 opposing the Preliminary objection. Counsel argued four points namely; 5. **Whether the Respondent’s preliminary objection is merited;** 6. **Whether the absence of ‘reasons’ from the taxing master renders the applicant’s application premature;** 7. **Whether the respondent is out of time to file a reference under Rule 11 of the Advocates Remuneration Order;** 8. **Whether the certificate of costs is ripe for adoption as a judgment of the court.** 9. **On whether the Respondent’s preliminary Objection is merited**, Counsel relied on the decisions of **Mukhisa Biscuit Manufacturing Company Limited -V- West End Distributors Limited, and Oraro -V- Mbaja (2005) eKLR** on what constitutes a Preliminary Objection; 1. Counsel submitted that a preliminary objection must be a pure point of law which is apparent from the pleadings; Reference should not be made to the facts or evidence and the preliminary objection should be capable of disposing of the suit. Counsel urged that the Respondent’s preliminary objection is premised on alleged absence of reasons from that Taxing Master; 2. That the Respondent needs to prove, that it wrote to the Taxing Master requesting for reasons by attaching the letter; that the Preliminary Objection depends on facts and supporting evidence and therefore is not a pure point of law. 3. **On whether the absence of reasons renders the application premature**: - It is the applicant’s position that the ruling delivered by the Taxing Master is detailed and contains sufficient reasons and courts have held that once the Taxing Master gives a reasoned ruling, there is no requirement for other separate ‘reasons’ be supplied. 4. For that preposition Counsel relied on the decisions of **Kipkorir Titoo, Kiarie Advocates -V- Deposit Protection Fund Board (2005) eKLR** and **Twiga Motors Limited -V- Hon. Dalmas Otieno** **Onyango** where courts held that where reasons for taxation are contained in the Ruling, no further reasons are necessary; that therefore the Respondents argument that the taxation process is incomplete, is not tenable. 5. **On the question whether the Respondents is out of time to file a reference;** Counsel submitted that a Notice of Objection to the Taxing Master must be filed within fourteen days in terms of Rule 11(1) of the Advocates Remuneration Order and once the reasons, for taxation are given, a reference has to be filed within fourteen days but that where the ruling contains reasons, then time for filing reference begins to run on the date of the ruling as was held in **Lubullalah & Associates -V- M.K. Brothers Limited Misc.Civil Case no. 52/2012.** 6. **On whether the certificate of costs should be adopted as Judgment**. Counsel urged the court to do so pursuant to Section 51(2) of the Advocates Act and he supported his argument with the decision of **Ahmed Nassir Abdikadir & Co Advocates -V- National Bank Ltd**. Where a certificate of costs was held to be final and binding unless set aside; that since the certificate of costs has not been set aside, there exists no competent reference and that the court should grant the applicant judgment as prayed. 7. Having considered both Counsels submissions on the preliminary objection, the issues for determination are: - 8. **Whether the Preliminary Objection meets the threshold of a Preliminary Objection;** 9. **Whether the applicant’s application dated 22/11/2025 and filed in court on 23/1/2026 is premature in the absence of reasons from the Taxing Master;** 10. **Whether the Respondent is out of time to file a reference under Rule 11 of the Advocates Remuneration Order.** 11. **Whether the certificate of costs is ripe for adoption as a Judgment of the court.** 12. **Whether the Preliminary Objection raised by the Respondent meets the threshold of a Preliminary Objection.** In the celebrated case of **Mukisa Biscuit Manufactures Co. Limited -V- West End Distributors Ltd (1969) 696,** the Eastern Court of Appeal said **“…… A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact needs to be ascertained or if what is sought is the exercise of judicial discretion.”…..**Law J.A said **“so far as I am aware a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings and which if argued as a preliminary point may dispose of the suit** The case of **George Oraro -V- Eston Mbaja (2005) eKLR** the Court went further to state that a Preliminary Objection does not have to be proved by facts or evidence. The court said “**“A Preliminary Objection is …… declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence.** **Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed…..”** 1. A Preliminary Objection therefore has the following features 2. It must be a pure point of law apparent from the pleadings; 3. It does not require proof by facts or evidence; 4. It should be capable of disposing of the suit if upheld. 5. The preliminary Objection raised herein concerns the interpretation and application of paragraph 11 of the ROA and section 51 (2) of the Advocates and whether the court has complied with the same. 6. Paragraph 11 of the Advocates Remuneration Order provides a detailed process of objection to taxation of costs as follows:- **11. Objection to decision on taxation and appeal to Court of Appeal** **(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.** **(3) Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.** **(4) The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) far the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.** 30. In the instant case, the decision by the Taxing Master was made on 13/11/2025. In terms of Paragraph 11(1) the Respondent claims to have issued notice of objection to the taxing master. By doing so, it means that the Respondent would be called upon to adducing evidence to the effect that the Respondent issued such notice and requested for reasons. 31. By filing this objection this court cannot ascertain whether indeed the Respondent wrote to the taxing master requesting for reasons for the ruling. The letter of requesting for reasons was not attached. In attaching the letter, the Respondent would in effect be adducing evidence. 32. In addition, whereas the Respondent contents that reasons were yet to be given by the Taxing Master, the applicant contents that the ruling already contained reasons hence there was not need for further reasons to be given. This court would need to consider the ruling of Taxing Master and determine whether or not reasons had been given. 33. Having observed the above, I agree with the applicants view that there are factual contentions which require to be proved by facts or evidence. Hence, what the Respondent has raised is not a pure point of law. 34. The other question this court needs answered is whether the application dated 22/11/2025 is premature for want of reasons by the Taxing Master. I have perused the impugned ruling and note that the Taxing Master gave reasons for all the items at paragraphs 2 to 7 of the Ruling. I do agree with the applicant’s submissions that courts have generally agreed and held that where a Taxing Master has delivered a reasoned ruling, there is no requirement that other separate reasons be supplied. 35. In **Evans Thige Gaturu -V- Kenya Commercial Bank Limited (2012) eKLR** Odunga, Judge as he then was held as follows:- **“In most cases the court is aware that the Taxing Officers in their decisions on taxation do deliver comprehensive rulings; which are self-contained thus obviating the necessity to furnish fresh reasons thereafter. In such circumstances, it would be fool hardy to expect the taxing Officer to redraft another ruling containing reasons.”** **36.** Again, in **Muri Mwaniki &Wamiti Advocates -V- African Banking Group Ltd CA 405/2017,** the court held as follows**: It is well settled that where a Deputy Registrar has delivered a ruling after a taxation, it would be superfluous to ask for reasons”.** In **Ahmed Abdikadir & Co Ltd -V- National Bank of Kenya Ltd (2) 2006 1 EA 5 J. Ochieng held “Although rule 11(1) of the Advocates Remuneration Order stipulates that any party who wishes to object to the decision of the taxing officer, should do so within 14 days after the said decision and thereafter file his reference within 14 days from the date of the receipt of the reasons, where the reasons for the taxation on the disputed items in the bill are already contained in the considered ruling, there is no need to seek for further reasons simply because of the unfortunate wording of subrule (2) of rule 11 of the Advocates Remuneration Order demands so. The said rule was not intended to be ritualistically observed even when reasons for the disputed taxation are already contained in the formal and considered ruling...Therefore the reference having been filed way out of the period prescribed should have been dismissed but having been given due consideration in substance, the same dismissed”. See Kenya Commercial Bank Ltd. -V- James Onyango.** **37. In Kipkorir Titoo & Kiarie Advocates -V- Deposit Protection Fund Board CA 220/2004 (2005) eKLR where the taxing Officer had not fully complied with Rule 11 (2) of the Order, the court found that there was substantial compliance and the adequacy or otherwise if the reasons in the ruling were something else and that had the taxing Master failed to totally give any reasons, then it would have been a good ground for reference and absence of the reasons would preclude the objector from filing a competent reference.** **38. From a consideration of the above decisions, the Taxing Officer had given reasons in the ruling of 13/11/2025 and there was no reason for her to redraft another ruling. Having been furnished with reasons on 13/11/2025, the Respondent should have within fourteen days applied to the judge in Chambers the grounds of objection.** **39. Although the Respondent claimed to have filed notice of objection, that has not been demonstrated. The said notice was not shown to the court. Likewise, the Respondent did not file a reference to the Judge in terms of Rule 11(2) of the Advocates Remuneration Order.** **40. Since the ruling contained some reasons, it follows that the 14 days period for filing reference started running from 14/11/2025 and lapsed on 27/11/2025. If for some good reason the Respondent had failed to file the reference, Rule 11 (4) of Advocates Remuneration Order gives the High Court powers to enlarge time under Rules 11 (1) and (2). There is no evidence that the Respondent has sought extension of time.** **41. By the time the applicant filed the instant application for Judgment, under section 51(2) of the Advocates Act. the Respondent had over time from 27/11/2025, of over twenty (20) days to seek extension of time to file a reference to this court but failed to do so. I therefore find that the application dated 22/11/2025 and filed in court on 23/1/2026 was not filed prematurely.** **Section 51 (2) of the Advocates Act provides as follows** **“The certificate of the taxing officer by whom any bill has been taxed shall, unless it is set aside or altered by the Court, be final as to the amount of the costs covered thereby, and the Court may make such order in relation thereto as it thinks fit, including, in a case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs.”** 42. Having dismissed the Respondents preliminary objection, this court finds that the applicant is entitled to Judgment as prayed in the Notice of motion dated 22/11/2025 and filed in court on 23/1/2026. 43. I therefore make the following orders: - **(1) the certificate of costs issued to the applicant on 17/11/2025 against the Respondent is hereby converted and adopted as the Judgment and decree of this court and Judgment is entered for the applicant against the Respondent for Kshs.287,489.75;** **(2) Interest to accrue on the sum of Kshs.287,489.75 at the rate of 14% per annum with effect from 19/9/2025 until payment in full as prescribed in paragraph 7 Part 1 of the Advocates Remuneration Order.** **(3) The applicant will also have costs of this application.** **Dated, Signed and delivered at Kapenguria this 28th day of July, 2026.** **HON. R.P.V. WENDOH.** **JUDGE** **In the presence of:-** **Ms Mresia for the Applicant** **Ms Wafula for the Respondent** **Juma/Hellen – Court Assistants**