https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1612

Tom Ojienda & Associates v Nairobi City County (Civil Appeal 273 of 2020) [2026] KECA 1612 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1612 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal 273 of 2020 K M'Inoti, EC Mwita & B Ongaya, JJA July 31, 2026 Between Prof Tom Ojienda & Associates Appellant and Nairobi City County Respondent (Appeal from the ruling and order of the High Court of Kenya at Nairobi (Mativo, J.) dated 14th May 2020 in JR Misc. No. 15 of 2017) Judgment 1.At the material time between 2015 and 2018, the appellant, Professor Tom Ojienda & Associates, a firm of advocates based in Nairobi, had an advocate and client relationship with the respondent, the Nairobi City County. 2.The respondent instructed the appellant to act for it in a constitutional petition, to wit, High Court Petition No. 540 of 2015, Hon Ben Mutura v. Nairobi City County & 8 Others, in which the petitioner alleged that the respondent had violated the Constitution, the County Governments Act, 2012 and the Public Finance Management Act, 2012 (PFMA), by failing to ensure that all the respondent’s revenues were paid into the County Revenue Fund and withdrawn only with the approval of the Controller of Budget, and failing to ensure accountable, prudent and responsible use of public funds. 3.By way of remedies the Petitioner prayed for declarations that the respondent and others were in violation of the Constitution and the statutes aforesaid, and that the right of the petitioner and other residents of the County to access information had been violated. The petitioner also prayed for costs of the petition. 4.Simultaneously with the petition the Petitioner filed an interlocutory application for conservatory orders to restrain the respondent from spending at source revenues raised or received on its behalf and depositing funds received by it into any account other than the County Revenue Fund; a mandatory injunction to compel the respondent to pay into the County Revenue Fund all moneys received by it, and a mandatory injunction to compel the Ethics and Anti- Corruption Commission to investigate whether the respondent’s revenues had been used corruptly. 5.The appellant opposed the petition on behalf of the respondent and ultimately the petition was dismissed. On 24th April, 2017 the appellant filed its Advocate-Client Bill of Costs for Ksh.156,831,569.00, of which Ksh. 89,910,000.00 was instruction fees. The appellant claimed that the value of the subject matter was Ksh. 20,000,000,000.00. The respondent objected to three items in the Bill of Costs, namely, the instruction fees, the drawing of replying affidavit which the appellant had charged Ksh. 41,300.00 and the making of copies at Ksh. 61,200.00 6.By a ruling dated 1st March 2018, the taxing master taxed the appellant’s Bill at a total of Ksh. 1,973,744.00. The instruction fees was taxed at Kshs. 1,000,000.00 7.The appellant was aggrieved and made a reference to the High Court seeking variation or setting aside of the decision of the taxing master on the instruction fees, and an order for the Bill of Costs be taxed afresh. The appellant contended, among others, that the petition raised complex and novel issues and that the amount awarded by the taxing master was inordinately low. 8.The respondent opposed the reference, arguing that there was nothing novel or complex in the petition, the main issue being only whether the respondent was justified in holding contingent funds to attend to urgent operational issues and whether Art 207 of the Constitution allowed such retention. 9.By the ruling impugned in this appeal, Mativo, J. (as he then was) noted that by approach, the court is slow to interfere with exercise of discretion by the taxing master unless he or she has exercised the discretion improperly by failing to exercise his or her mind, disregarding relevant factors or principles, considering irrelevant factors, acting on wrong principle or reaching a conclusion that no reasonable person could have reached. He found that the petition did not raise any novel or complex issue; that the taxing master was alive to the law and principles governing taxation; and that she did not misdirect herself or improperly exercise her discretion. Accordingly, the learned judge dismissed the reference with costs. 10.The appellant was still aggrieved and lodged this appeal, in which it contends that the High Court erred by holding:i.that the taxing master did not misdirect herself or improperly exercise her discretion;ii.that the petition did not raise novel and complex issues;iii.that the taxing master’s failure to consider the parties’ submissions was not material enough to warrant interference; andiv.that the misdirection by the taxing master was not material enough to justify interference. 11.Relying on submissions dated 28th August 2020, Ms. Msando, learned counsel for the appellant, argued, regarding exercise of discretion by the taxing master, that the court misinterpreted the decision in Nyangito & Company Advocates v. Doinyo Lessos Creameries Ltd [2014] eKLR when it held that in petitions and judicial review matters, the subject matter does not determine instructions and costs to be awarded. It was contended that contrary to the court’s holding, the said decision merely held that the subject matter in petitions and judicial review matters may not be the sole determinant. It was further submitted that to interpret the decision as the High Court did would constitute discrimination against advocates involved in petitions and judicial review matters and a violation of economic rights under section 43 of the Constitution. 12.It was the appellant’s contention that the High Court and the taxing master misdirected themselves by failing to hold that the Remuneration Order provides a guide to the minimum fees below which an advocate is not allowed to charge and does not set what an advocate must be paid. It was submitted that to arrive at the proper instruction fees, the taxing master was required to consider the minimum fees together with other relevant factors such as the subject matter, the nature and importance of the matter, the interest of the parties and the general conduct of the proceedings. The appellant contended that the instruction fees of Ksh. 1,000,000.00 was inordinately low and incapable of attracting worthy recruits to the profession. 13.On the novelty and complexity of the petition, the appellant submitted that it deployed great industry and bore a heavy burden perusing and analysing the respondent’s financial records and conducting research. It was argued that the High Court did not appreciate the complexity of the petition, the nature and importance of the matter to the respondent, the interests of all the parties involved and the general conduct of the proceedings. The appellant submitted that a successful litigant ought to be fairly reimbursed for incurred costs and that remuneration of advocates must be such as to attract worthy recruits to the profession. In support the decision in Registered Trustees of Cashew Nut Industry Development Fund v. Cashew Nut Board of Tanzania, CA No. 18 of 2021, was deployed. 14.Next, the appellant submitted that the High Court erred by holding that it could interfere with the exercise of discretion by the taxing master only if the submissions she was alleged not to have considered were material. It was the appellant’s contention that was a misdirection and contrary to the national values in Article 10 and the right to be heard in Article 50 of the Constitution. 15.The appellant also faulted the High Court for holding that the misdirections by the taxing master were not material, submitting that the taxing master proceeded on the wrong principles on instruction fees, and thus the misdirection was material and warranted interference. 16.The respondent, represented by Mr. Ataka, learned counsel, opposed the appeal vide submissions dated 4th February 2021. Counsel contended that the appellant had failed to demonstrate any error of principle committed by the taxing master so as to justify interference with her award. 17.Counsel further submitted that the petition in the High Court was not complex and that the respondent did not seriously contest its obligation under Article 207 of the Constitution, and that the main issue for determination was whether under that provision and due to exigencies of its operations, the respondent could retain contingent funds at hand to ensure that its normal services were not disrupted. It was contended that the appellant had improperly filed bulky and unnecessary documents, including copies of the entire Constitution and the PFMA, which was not evidence of industry and research. 18.The respondent further submitted that neither the taxing master, nor the High Court had found that the value of the subject matter was Ksh. 20,000,000,000.00 and that the appellant had deliberately mischaracterised the petition as one involving expenditure of funds amounting to Ksh. 20,000,000,000.00. In the respondent’s view, the real issue before the High Court was the interpretation of Articles 201 and 207 of the Constitution and section 109(6) of the PFMA. 19.It was the respondent’s further submission that perceived earnings in public sector do not constitute the subject matter in public law claims, including constitutional petitions. The decision of the High Court in Republic v. Minister for Agriculture & 2 Others ex parte Samuel Muchiri W’Njuguna & 6 Others [2006] eKLR was cited in support of the principles that guide a taxing master, emphasis being laid on the holding that purely public law proceedings are to be considered entirely free of any private business arrangements or earning of the private sector. 20.The respondent contended that under Schedule 6 (1) (j) of the Advocates Remuneration Order, the basic instruction fee prescribed for a constitutional petition is Ksh. 100,000.00, which is what the taxing master used to award the appellant instruction fees of Ksh. 1,000,000.00. Rather than the taxing master’s award being manifestly low, the respondent submitted, it was the appellant’s claim of Ksh. 89,910,000.00 which was manifestly excessive and unreasonable. In further defence of the award by the taxing master, the respondent submitted that she was right to disregard the authorities relied upon by the appellant because they arose out of taxation of private law claims, rather than public law claims like the petition which gave rise to the Bill of Costs in issue. 21.We have carefully considered this appeal. The gravamen of the appeal is whether the High Court erred by declining to interfere with the exercise of discretion by the taxing master in her award on instruction fees. 22.The general principle on which taxation proceeds are well settled. In Premchand Raichand Ltd v. Quarry Services of East Africa Ltd. (No. 3) [1972] EA 162, the former Court of Appeal for East Africa stated the principles to include:i.that costs should not be allowed to rise to such a level as to confine access to the courts to the wealthy;ii.that a successful litigant ought to be fairly reimbursed for the costs he has incurred;iii.that the general level of remuneration of advocates must be such as to attract recruits to the profession; andiv.that so far as possible, there should be consistency in the awards made. 23.More recently, in Kenya Airports Authority v. Otieno Ragot & Company Advocates [2024] KESC 44 (KLR), the Supreme Court held as follows as regards the purpose of the Advocates Remuneration Order:“The overall objective is to prevent exploitation of parties to a suit/transaction with regard to remuneration of advocates and compensation of costs or expenses incurred by a successful party as well as maintain the standards of the legal profession. Differently put, it is to ensure that fees/costs paid to an advocate and a successful party are reasonable. Of importance, is that what amounts to reasonable costs can only be determined on a case-by-case basis.” 24.As regard a reference from a decision of a tax master, it is equally well settled that the court will not readily interfere with the decision of the taxing master, save in exceptional circumstances. In Premchand Raichand Ltd v. Quarry Services of East Africa Ltd. (No. 3) (supra) it was held that:“Taxation of costs is not a mathematical exercise; it is entirely a matter of opinion based on experience. A court will not, therefore, interfere with the award of a taxing officer, and particularly where he is an officer of great experience, merely because it thinks the award somewhat too high or too low: it will only interfere if it thinks the award so high or so low as to amount to an injustice to one party or the other. 25.Those words were re-echoed by Ringera, J. (as he then was) in First American Bank of Kenya Ltd v. Gulab P. Shah & 2 Others [2002] KEHC 1277 (KLR) when he stated:“First, I find that on the authorities, 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…Of course, it would be an error of principle to take into account irrelevant factors or to omit to consider relevant factors." 26.In this appeal, the appellant submits that both the taxing master and the High Court erred by failing to base the instruction fees on the subject matter of the litigation, which the appellant pegs at Ksh. 20,000,000,000.00, presumably being the value of revenues collected by the respondent. On its part, the respondent maintains that the litigation was not about Ksh. 20,000,000,000.00, but rather whether the respondent was complying with the law and the Constitution while collecting and utilising the revenue it raised. 27.In Joreth Ltd v. Kigano & Associates [2002] 1 EA 92, this Court explained how the value of the subject matter should be determined for purposes of instructions fees, The Court held that:“the value of the subject matter for purposes of taxation of a bill of costs ought to be determined from the pleadings, judgment or settlement (if such be the case) but if the same is not ascertainable the taxing officer is entitled to use his discretion to assess such instruction fees as he considers just taking in account, amongst other matters, the nature and the importance of the cause or matter, the interest of the parties, the general conduct of the proceedings, any direction by the trial judge and all other relevant circumstances.” 28.In this appeal, we are unable to agree with the appellant that the value of the subject matter was Ksh. 20,000,000,000.00. That amount as the value of the subject matter of the petition is not discernible from the pleadings or judgment. The issue in the petition before the High Court was not a claim for Ksh. 20,000,000,000.00 as suggested by the appellant. The issue was whether the respondent had acted responsibly, prudently and accountably in accordance with the demands of the Constitution, the County Government Act and the PFMA in the manner in which it collected, received and used its revenues. Subject to what we shall say about the importance of the subject matter, the issue raised in the petition in the High Court would have remained constant irrespective of the total amount of revenue collected, be it Ksh. 100.00, Ksh. 1,000,000.00, Ksh. 100,000,000.00 or any other figure. At no point in the petition did the respondent risk losing Ksh. 20,000,000,000.00 or the petitioner gaining that sum. 29.Whether the value of the subject matter cannot be determined from the pleadings or judgment, the taxing master has discretion to award a reasonable amount for instruction fees, taking into account a number of factors, among them, the nature and importance of the case, the interests of the parties, the complexity or novelty of the case, and the general conduct of the case. (See Moronge & Company Advocates v. Kenya Airports Authority [2014] eKLR and Peter Muthoka & Another v. Ochieng & 3 Others [2019] eKLR). 30.The basic instruction fees for constitutional petitions and judicial review applications is provided for in Schedule 6 (1) (j) of the Advocate’s Remuneration Order, which provides as follows:“Constitutional petitions and prerogative ordersTo present or oppose an application for a Constitutional and Prerogative Orders such fee as the taxing master in the exercise of his discretion and taking into consideration the nature and importance of the petition or application, the complexity of the matter and the difficulty or novelty of the question raised, the amount or value of the subject matter, the time expended by the advocate—i.where the matter is not complex or opposed such sum as may be reasonable but not less than 45,000ii.where the matter is opposed and found to satisfy the criteria set out above, such sum as may reasonable but not less than 100,000.” 31.For the purposes of this appeal, it is common ground that the prescribed minimum instruction fees under the Advocates Remuneration Order is Ksh. 100,000.00. The taxing officer, after taking into account the considerations set out in the Order such as importance and nature of the petition, its complexity, novelty, etc. awarded the appellant Ksh. 1,000,000.00 as instruction fees, representing an increase of the prescribed minimum instruction fees by 1000%. We are persuaded that the award of instruction fees of Ksh. 1,000,000.00 for a matter where the prescribed fees ins Ksh. 100,000.00 is explained on the basis of the findings of the taxing master regarding the nature of the petition, the importance of the subject matter to the parties, complexity and novelty of the petition. In our view, as properly held by the High Court, the taxing master cannot, in the circumstances of this appeal, be accused of making an inordinately low award. On the contrary, it was the appellant who was demanding an inordinately astronomical and manifestly excessive award. 32.In Republic v. Minister for Agriculture & 2 Others ex parte Samuel Muchiri W’Njuguna & 6 Others (supra) where the taxing master had awarded instruction fees of Ksh. 20,000,000.00 for a matter where the prescribed basic instruction fees was Ksh. 20,000.00, the High Court, while setting aside the award as inordinately excessive, cautioned against reliance on private law awards in public law claims, such as judicial review, constitutional petitions and electoral matters noting that:Such matters are in a class of their own, and the instruction fees allowable in respect of them should not, in principle, be extrapolated from the practices obtaining in the private law domain which may involve business claims and profit calculations.” 33.The appellant also faults the High Court for holding that there was no material misdirection by the taxing master, including the failure to consider the parties’ submissions and misapplication of the previous decision of the High Court in Nyangito & Company Advocates v. Doinyo Lessos Creameries Ltd (supra). We must point out that the High Court referred to the above decision as one of the factors, rather than the only factor, that the taxing master took into account in making her award. This is how the High Court expressed itself on the issue:“The question is whether the taxing master erred or misapplied the said principles or improperly exercised here discretion. A reading of the taxing master’s ruling shows that she listed the factors to guide her in exercising her discretion. She cited Nyangito & Company Advocates v. Doinyo Lessos Creameries Ltd (supra) which held that in constitutional petitions and judicial review matters, the subject matter does not determine the costs to be allowed. She carefully listed the factors to guide her discretion and cited decisions which laid down principles governing taxation. A reading of the ruling and in particular the manner in which she approached the question of instruction fees shows clearly that the taxing master was not only alive to the law and principles governing taxation, but also, she took in to account the said principles and fully the task before her. I am not persuaded that she misdirected herself or improperly exercised her discretion.” 34.The relevant part of the ruling of the High Court (Odunga, J., as he then was) in Nyangito & Company advocates v Doinyo Lessos Creameries Ltd (supra) reads as follows:In her ruling, the learned taxing master was the view, which view I agree with, that in judicial review application the subject matter is not the basis of determining the instructions fees though it is one of the factors to be considered. She found that the relevant paragraph of Schedule VI was paragraph (1) (j) where the minimum provided for is Kshs 28,000/=. While appreciating the factors which guide the increase of the instructions fees, she found that the complexity had not been demonstrated hence the amount of Kshs 300,000= was reasonable.” 35.It is clear that the quotation by the taxing master from Nyangito & Company Advocates v. Doinyo Lessos Creameries Ltd. (supra) was not complete. Odunga, J. did not state that the subject matter was not the basis of determining the instruction fees, but that it was one of the factors to be considered. However, notwithstanding the misstatement of the holding, both the High Court and the taxing master did not actually ignore the subject matter; it was one of the factors that was in fact considered. 36.In addressing the above issues, the High Court stated as follows:“…before the Court interferes with the decision of the taxing master it must be satisfied that the taxing master’s ruling was clearly wrong as opposed to the court being clearly satisfied that the taxing master was wrong. This indicates that the court will not interfere with the decision of the taxing master in every case where its view of the matter in dispute differs from that of the taxing master, but only when it is satisfied that taxing master’s view of the matter differs so materially from its own that it should be held to vitiate the ruling.” 37.What we understand the High Court to state is that it is not every misdirection by the taxing master which must result in interference with the exercise of his or her discretion. It must be a misdirection of such a nature that satisfies the court that the misdirection has vitiated the award. In Bank of Uganda v. Banco Arabe Esapanol, SCCA No. 23 of 1999, the Supreme Court of Uganda (Mulenga, J.) stated that principle as follows:“…even if it is shown that the taxing officer erred on principle, the judge should interfere only on being satisfied that the error substantially affected the decision on quantum and that upholding the amount allowed would cause injustice to one of the parties.” 38.Having carefully considered both the rulings of the taxing master and of the High Court, we have not discerned a misdirection of that nature or magnitude. On the contrary, like the High Court, we are satisfied that the taxing master properly exercised her discretion in making the award on instruction fees and that there was no basis for interference with the exercise of that discretion. 39.In the premises, we find that this appeal is bereft of merit and is hereby dismissed with costs to the respondent. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026.K. M’INOTI………………………………JUDGE OF APPEALE. C. MWITA………………………………JUDGE OF APPEALB. ONGAYA……………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.