https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8906

SI Mwaura & Co Advocates v Kogi (Miscellaneous Commercial Application E023 of 2026) [2026] KEHC 8906 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEHC 8906 (KLR) Republic of Kenya In the High Court at Thika Miscellaneous Commercial Application E023 of 2026 FN Muchemi, J June 18, 2026 Between SI Mwaura & Co Advocates Advocate and John Mwaura Kogi Client Ruling Brief facts 1.The applications for determination are dated 1st April 2026 and 7th April 2026. The application dated 1st April 2026 seeks for orders of entering judgment in favour of the applicant for Kshs. 348,000/- pursuant to the ruling delivered on 30th March 2026 and Certificate of Taxation dated 31st March 2026. The applicant further seeks for interest to be provided at court rates from the date of taxation until payment in full. 2.In opposition to the application, the respondent filed a Replying Affidavit dated 7th May 2026. 3.The respondent then filed an application dated 7th April 2026 seeking for orders of setting aside of the decision of the Taxing Master in Thika Misc E008 of 2026 delivered on 30/03/2026 and the bill be referred back for fresh taxation before a different taxing master. 4.In opposition to the application, the advocate filed a Replying affidavit dated 29th April 2026. 5.For ease of reference, the advocate shall be referred as the applicant while the client will be referred as the respondent. This applies to the two applications and the reference. The Applicant/Client’s application dated 1st April 2026 6.The applicant states that its bill of costs dated 4th February 2026 has since been taxed at Kshs. 348,000/- and a certificate of taxation issued on 31st March 2026. 7.The applicant states that the certificate of taxation was duly served upon the respondent but it has blatantly refused and declined to settle the bill as taxed. Further the respondent has not filed any reference or made any application for stay of execution or to set aside the certificate of taxation dated 31st March 2026. The applicant further states that he stands to suffer irreparable damage and substantial loss if the court declines to allow the instant application whereas the respondent shall not suffer any prejudice if the application is allowed as prayed. The Respondent’s Case 8.The respondent states that it filed a reference which raises serious and arguable issues regarding the propriety, legality and quantum of the taxed costs. The respondent further states that it would be unjust and prejudicial to it if the certificate of taxation was to be adopted as a judgment of the court before the reference is heard and determined. 9.The respondent avers that the applicant will not suffer any prejudice if the application is stayed pending the determination of the reference whereas it stands to suffer substantial prejudice if judgment is entered prematurely. The Respondent/Client’s application dated 7th April 2026. 10.The respondent contends that it was denied a reasonable time within which to prepare and file its responses with the Taxing master granting it two days to file responses to five bill of costs in the five different applications being Misc. E007/2026, E008/2026, E023/2026, E024/2026 and E025/2026. The applicant argues that the two days granted were grossly insufficient to allow it to gather and assemble its documentary evidence which included correspondence to enable it mount an appropriate response for each of the five applications. Thus, the responent argues that the Taxing Master denied it the opportunity to present its case and constructively condemned it unheard. 11.The respondent avers that the Taxing Master proceeded to tax the bill of costs at a manifestly high figure of Kshs. 348,000/- without providing a basis for arriving at the same contrary to the requirements under Schedule V of the Advocates Remuneration Order. Further the Taxing Master failed to consider its responses despite the same providing an hourly basis of Kshs. 10,000/- per hour for six hours for determining the proposed amounts payable under Schedule V on each of the three documents that were under consideration which cumulatively would have arrived at Kshs. 180,000/- for the three documents. 12.The respondent argues that despite a written request for the reasons for the taxing master decision in his ruling on 30/3/2026, its request was inordinately delayed and was only granted on 7th April 2026 upon persistent follow ups. The respondent argues that no reasons have been given for the said delay leaving it to speculate that the same was intended to pave way for the respondent to proceed and prepare its application dated 1st April 2026 to its detriment. While similar requests made by the respondent were granted expeditiously as the applicant requested for the certificate of costs on 30/3/2026 and the same was issued on 31/3/2026. The Applicant’s Response 13.The applicant argues that the supporting affidavit dated 7th April 2026 ought to be struck out on the ground that it was commissioned before a person who is not licensed to practice law in Kenya making the said affidavit fatally defective and inadmissible before the court. The applicant states that the applicant failed to enter appearance on time and sought to arrest the ruling of the court to pave way for it to file responses to the bill of costs and the taxing master allowed its application ex parte and granted leave for it to file the requisite responses but maintained the ruling date thus defeating the applicant’s well calculated plan of derailing the matter herein. 14.The applicant asserts that the applicant was served with the taxation notice and bill of costs on 20th February 2026 via their five email addresses but chose not to participate in the taxation proceedings until when it filed the application for leave to respond. The applicant is a beneficiary of equity as the court allowed its application and it participated in the proceedings thus it is uncourteous for the client to frown upon the court that extended equity to it. Contrary to the allegations of two days, the client had two months to file responses and submissions and hence was accorded enough time to respond to the bill of costs. 15.The applicant states that the client has misapprehended the law relating to taxations under Schedule V and wallows on the misguided belief that a taxing master has to give hourly rates, which belief is erroneous since the taxing master has the discretion of using the alternative method of assessing costs where there is no agreement between the client and advocate as is the case herein. 16.The applicant asserts that the ruling of the court was uploaded on the CTS on 31st March 2026 at 5.06 p.m and hence was available for the client one day after the request was made. The applicant additionally states that it takes offence with the allegations that the taxing master responded swiftly to the request for taxation certificate but delayed with the reasons for taxation for the reason that the efficiency of the court cannot be faulted or castigated. 17.The respondent filed a Further Affidavit dated 2nd May 2026 and confirms that the affidavit dated 7th April 2026 was commissioned by an advocate who had not renewed his 2026 practicing certificate as at the date of commissioning. The respondent states that it was not intentional and argues that the said defect is not fatal to the application pursuant to Order 51 Rule 4 of the Civil Procedure Rules which enables an application to stand on its own without an affidavit. 18.The respondent states that under Schedule V, an advocate may charge fees on either hourly or through alternative assessment. The respondent argues that the ruling by the taxing master was erroneous, exorbitant and manifestly high as item 1 was taxed at manifestly high figure of Kshs. 300,000/- as fees for preparation of a share transfer agreement, non disclosure agreement and deed of indemnity. The taxing master taxed the three items at a uniform rate of Kshs. 100,000/- each which is ideally not possible for three different legal documents. The respondent proposes assessment as follows- share transfer agreement to be taxed at Kshs. 50,000/- and the rest to be taxed off, non disclosure agreement to be taxed at Kshs. 60,000/- and the rest of the amount to be taxed off and the deed of indemnity to be taxed at Kshs. 50,000/- and the rest to be taxed off. Consequently, the bill to be taxed at Kshs. 160,000/- plus VAT. The respondent asserts that the reasons for the proposed amounts is because the documents were normal and usual legal instruments without complexities that would call for extra efforts outside the normal diligence required of a legal professional. 19.The respondent states that the emails containing the bill of taxation and the notice were directed to the spam folder where in the ordinary course of things they were not able to sight them leading to the failure to enter appearance and respond to the bills. 20.Parties put in written submissions. The Respondent/Client’s Submissions 21.The respondent submits that it was denied its right to a fair hearing under Article 50 of the Constitution as it was granted insufficient time within which to make its responses and the taxing master made it impossible for it by setting the ruling date effectively. The applicant further submits that the right to be heard is the most basic of the rules of natural justice. To support its contentions, the applicant relies on the cases of Kenya Revenue Authority ex parte Mombasa Maize Millers Ltd [2019] eKLR and Mbaki & Others vs Macharia & Another [2005] 2 EA 206 and submits that the ruling of 30th March 2026 was made in circumstances that amounted to a constructive denial of hearing. 22.The applicant cites Order 51 Rule 4, Rule 10(2) and Order 19 Rule 7 of the Civil Procedure Rules and submits that commissioning by an advocate without a current practicing certificate goes to the form and not the substance. The contents of the affidavit and the facts deponed therein remain true. The respondent further argues that the defect in the affidavit is curable and it should be granted leave to file a compliant affidavit. Thus the applicant refers to Article 159(2)(d) of the Constitution and the case of National Bank of Kenya Ltd vs Anaj Warehousing Ltd [2015] KESC 4 (KLR) Petition No. 36 of 2014; Peterson Ndungu, Stephen Gichanga Gituro, N. Ojwang, Peter Kariuki, Joseph M. Kyavi & James Kimani vs Kenya Power & Lighting Company Ltd [2018] KECA 638 (KLR); Benel Development Limited vs First Community Bank Limited [2021] KEHC 8812 (KLR); Dardanell & 6 Others vs Tilito & 3 Others [2025] KEELC 392(KLR) and Microsoft Corporation vs Mitsumi Computer Garage Ltd & Another [2001] KEHC 846 (KLR). 23.The respondent submits that there is a stark contrast in the treatment afforded to the advocate and to itself as it requested for written reasons for the ruling on 30th March 2026 but the reasons were not provided to him until 7th April 2026. By contrast the advocate requested for a certificate of taxation on 30th March 2026 and the certificate was issued to him on 31st March 2026. The respondent argues that the disparity is unambiguous as the advocate’s request for the certificate of taxation was processed within one working day but his request for reasons for the ruling took days to process. Thus, the client argues that it was not given the same level of consideration as the advocate in the conduct of the proceedings. The applicant relies on the cases of Republic vs Mwalulu & 8 Others [2005] eKLR; Galaxy Paints Co. Ltd vs Falcon Guards Ltd [1999] eKLR and Judicial Service Commission vs Mbalu Mutava [2015] eKLR and submits that fairness and impartiality are constitutional imperatives under Article 47 and Article 50. Unequal treatment in procedure can amount to bias. 24.The respondent further cites the decision in Suchan Investment Ltd vs Ministry of National Heritage & Culture & 3 Others [2016] eKLR and submits that the obligation to provide written reasons is itself constitutionally mandated by Article 47(2) of the Constitution. 25.The respondent argues that the taxing master proceeded on the wrong principle by treating three different legal instruments the same and taxing them on a flat fee of Kshs. 100,000/- each hence arriving at wrong and excessive amounts. The respondent submits that the share transfer agreement, non disclosure agreement and the deed of indemnity are fundamentally different instruments requiring different levels of skill, care and labour. Thus to tax all three at the same rate without distinguishing between them, the taxing master failed to consider relevant factors thereby committing an error of principle. To support its contentions, the applicant relies on the case of First American Bank vs Shah [2002] 1 EA 64. The Applicant/Advocate’s Submissions 26.The respondent submits that the client admitted that the supporting affidavit was commissioned before a person who is unqualified to practice law in Kenya thus the said affidavit is a nullity and ought to be struck out. The applicantfurther relies on the case of Nicholas Kiptoo arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 Others [2015] eKLR and submits that the said defect is not a mere procedural technicality which can be cured by the duty of the court to do substantive justice but the defect goes to the root of the application and supporting affidavit. Further, the client’s argument that the chamber summons ought to stand alone even when the supporting affidavit is struck out is legally flawed as Order 51 Rule 4 of the Civil Procedure Rules does not envisage an application that is not supported by an affidavit to verify the contents of the application as well as provide evidence. Further upon striking out the supporting affidavit, the entire application fails on account of lack of evidence and thus the court ought to strike the entire application. 27.The applicant submits that the client was served with the taxation notice and the bill of costs on 20th February 2026 via their five email addresses but chose not to participate in the taxation proceedings until it filed the application for leave to respond. The client is a beneficiary of equity as the court allowed its application and it participated in the proceedings. Contrary to the allegations of two days, the client had approximately two months to file responses and submissions hence was accorded enough time to respond to the bill of costs. Further, the client had annexed a draft response to the bill of costs in its application for leave to respond to the bill of costs out of time, thus it is factually incorrect for it to argue that it was given two days when indeed a draft was in place when its application for leave was allowed. The applicant submits that it was equally given two days to respond to the client’s response to the bill of costs hence there was no discrimination on the parties. the respondent argues that the client was granted enough time to respond to the bill of costs, that the taxing master extended equity by allowing the client’s application ex parte and that the taxing master did not discriminate the client as he gave equal time to both parties to file their responses hence there is no justifiable reason to disturb the decision of the taxing master on the frivolous, unmerited and unsubstantiated ground. In any event, the client participated in the taxation proceedings and filed the requisite documents that were duly considered by the court in its ruling. 28.The applicant submits that the client admits the issuance of instructions to it to undertake item 1 but only disputes the amount of Kshs. 300,000/- as taxed. The respondent argues that the taxing master considered the said item and cited the importance of the three documents namely the share transfer agreement, non disclosure agreement and deed of indemnity to the client, the work undertaken by the advocate and the complexity of the matter. Further, the respondent argues that the allegations by the client that the taxing master exaggerated the amount taxed for item 1 are unfounded as the client proposes the substitution of the taxing master’s discretion of taxing the three documents at Kshs. 300,000/- with its own discretion of taxing the three documents at Kshs. 160,000/-, a position that is legally and logically flawed. To support his contentions, the respondent relies on the case of Kipkorir Titoo & Kiara Advocates vs Deposit Protection Fund Board [2005] eKLR and submits that a judge will not interfere with the discretion of the taxing master at a whim but only where there is an error in principle. Issues for determination 29.The issues for determination as follows: -i.Whether the supporting affidavit dated 7th April 2026 ought to be struck out.ii.Whether the respondent/client has made out a case for the review or setting aside of the taxing master’s assessment.Iii)Whether the application dated 1st April 2026 has merit. The Law Whether the supporting affidavit dated 7th April 2026 ought to be struck out. 30.The advocate argues that the supporting affidavit dated 7th April 2026 ought to be struck out as it was commissioned by an unqualified person. From the record, the applicant has admitted that its supporting affidavit was commissioned before an advocate who did not have a practicing certificate for the year 2026. The applicant however argues that pursuant to Order 51 Rule 4 of the Civil Procedure Rules, the application can stand without the affidavit and therefore should not be struck out. 31.Order 51 Rule 4 of the Civil Procedure Rules provides:-Every notice of motion shall state in general terms the grounds of the application and where any motion is grounded on evidence by affidavit, a copy of any affidavit intended to be used shall be served. 32.It is clear that an application should be accompanied by an affidavit which consists of the evidence in their case or application. Thus, the applicant is misguided in arguing that an application can stand alone without an affidavit in support. 33.However the question presents itself on whether a document prepared, executed or commissioned by an advocate who lacked a current practicing certificate is invalid. The Supreme Court addressed this issue in National Bank of Kenya Ltd vs Anaj Warehousing Ltd (Petition 36 of 2014) [2015] KESC 4(KLR) (2 December 2015) (Judgment) where the court held that Section 34 of the Advocates Act, did not invalidate the documents prepared by an advocate who lacked a current practicing certificate. The court stated:-Thus, the issue still remains: whether Section 34 of the Advocates Act actually invalidates all instruments of conveyance prepared by advocates who do not have current practicing certificates. In our opinion, it is essential to establish the main objective of Section 34 as a basis for any conclusions. This section prohibits unqualified persons from preparing certain documents. It is directed at “unqualified persons”. It prescribes clear sanctions against those who transgress the prohibition. The sanctions prescribed are both civil and criminal in nature. But the law is silent as to the effect of documents prepared by advocates not holding current practicing certificates.In these circumstances, how does the citizen’s position rest? If he or she were to walk into an advocate’s office, for a conveyancing service at a fee, would there be an initial obligation resting on him or her to demand the advocate’s practicing certificate? Would he or she be in breach of the law if after the service, it turned out that the advocate lacked a certificate? The transgressor, in our view, is the advocate, and not the client. The illegality is the assumption of the task or preparing the conveyancing document, by the advocate, and not seeking and receiving of services from that advocate. Likewise, a financial institution that calls upon any advocate from among its established panel to execute a conveyance, commits no offence if it turns out that the advocate did not possess a current practicing certificate at the time he or she prepared the conveyance documents. The spectre of illegality lies squarely upon the advocate and ought not to be apportioned to the client.Is such reasoning in keeping with a perception that Section 34 of the Advocates Act, invalidated all documents prepared by an advocates who lacks a practicing certificate? We do not think so. 34.It is noted that the respondent did not deny that the advocate who commissioned the supporting affidavit did not have a current practicing certificate but argues that it would be unfair to the respondent to have its supporting affidavit struck out. Thus keeping in line with Article 159 of the Constitution and the interests of justice, it is my considered view that the affidavit dated 7th April 2026 should not be struck out. 35.Rule 11 of the Advocates Remuneration Order provides:-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 objects2.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. 36.The taxation ruling was delivered on 30th March 2026. The respondent wrote to the taxing officer on 30th March 2026 notifying him that they objected to the instruction fees and requested for reasons for the ruling. The court sent a certified copy of the ruling and email on 7th April 2026 outlining the reasons which was followed by the applicant’s instant reference of 7th April 2026 which period was within the 14 days for filing the current application. Thus, the application has been filed timeously. Whether the applicant has made out a case for the review or setting aside of the taxing master’s assessment 37.The law is settled that a court will only interfere with the taxing master’s decision where there is an error of principle. In Republic vs Ministry of Agriculture & 2 Others ex parte Muchiri W’njuguna & 6 Others [2006] eKLR it was held:-The 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, particularly where he is an officer of great experience, merely because it thinks that the award somewhat too high or too low; it will only interfere if it thinks the ward so high or so low as to amount to an injustice to one party or the other….The 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 manifestly excessive as to justify an interference that it was based on an error of principle. 38.In Machira & Co. Advocates vs Magugu [2002] 2EA where Ringera J (as he then was) held that:-As I understand the practice relating to taxation of bill of costs, any complaint about any decision of the taxing officer whether it relates to a point of law taken with regard to taxation or to a grievance about the taxation of any item in the bill of costs is ventilated by way of a reference to a judge in accordance with paragraph 11 of the Advocates Remuneration Order. 39.The advocate client bill of costs dated 6th February 2026 was drawn for Kshs. 522,000/-. The taxing master taxed the bill at Kshs. 348,000/-. The respondent disputes the amount arguing that it is excessive and that the taxing master condemned them unheard. On perusal of the record, the advocate served the client with the bill of costs and election notice both dated 4th February 2026, taxation notice and list of documents on 20th February 2026 via email through its email addresses mwaurakogi@finscoafrica.com anthonyw@finscoafrica.com maryanne@finscoafrica.com and ckamau@finscoafrica.com. The respondent never entered appearance in the taxation matter but filed an application dated 19th March 2026 for leave to file its reply to the bill of costs on the grounds that they never saw the emails of service as the emails were directed to the spam folder. Annexed to the said application, the respondent annexed a draft response to the bill of costs. The Taxing Master on 23rd March 2026 in the then ex parte application and granted the applicant two days to file the response to the bill of costs. The respondent was also granted a similar period to file a further affidavit if need be. The Taxing Master maintained the date of ruling as earlier fixed being 30th March 2026. The respondent filed its response to the bill, a further response and submissions within the time given by the court. It is evident that the respondent was not condemned unheard but was given a chance to respond to the bill of costs and did so. The allegations by the respondent that two days was insufficient for them to file response is unsubstantiated. The respondent was served with the bill of costs as early as 20th February 2026. As at 19th March 2026, when the applicant filed their application for leave and already had drafted response to the said bill. Thus, it is my considered view that the respondent was given ample time to respond to the bill of costs which they did within the time given. 40.The applicant states that the Taxing Master delayed giving him reasons on taxation. The respondent states that he made his written request for reasons on 30/03/2026 and that he received the response on 07/04/2026. It is noted that, the Taxing Master is a magistrate who doubles with duties of administration of justice under the Chief magistrate. He is also the Deputy Registrar of the High Court where he is engaged in administration of the court. The two roles put together keep the Taxing Master quite busy, in my view. Delivery of the reasons in seven (7) days to the respondent was in my view expeditious. As such, I find the allegation of delay unreasonable on part of the respondent. 41.The respondent further disputes item 1 of the bill of costs arguing that item 1 should be taxed as thus: the share transfer agreement to be taxed at Kshs. 50,000/-, non disclosure agreement be taxed at Kshs. 60,000/- and deed of indemnity to be taxed at Kshs. 50,000/-The advocate claimed Kshs. 450,000/- for the work done in drafting or preparing the three legal documents. 42.On perusal of the record, the advocate duly served an election notice dated 4th February 2026 pursuant to paragraph 22 of the ARO to charge fees under Schedule 5 of the Advocates Remuneration Order 2014. Paragraph 22 provides:-In all cases in which any other Schedule applies, an advocate may, before or contemporaneously with rendering a bill of costs drawn as between advocate and client, signify to the client his election that, instead of charging under such schedule, his remuneration shall be according to Schedule 5, but if no election is made his remuneration shall be according to the scale applicable under the other Schedule.Subject to paragraph 3, an advocate who makes an election under subparagraph (1) of this paragraph may not by reason of his election charge less than the scale fee under the appropriate schedule. 43.Schedule 5 provides for assessment of fees at such hourly rate as may be agreed between advocate and the client. It also offers an alternative method of assessment. From the record, there was no agreement between the parties for the advocate to be remunerated based on an hourly rate. Thus, the court will use the alternative method of assessment as provided under part II of the Schedule. The factors to be considered include the care and labour required, the number and length of the papers to be perused, the nature or importance of the natter, the amount or value of the subject matter involved, the interest of the parties, complexity of the matter and all other circumstances of the case as may be fair and reasonable. 44.The advocate client relationship herein is not contested. Furthermore there are emails on record dated 14th October 2023 to 19th October 2023 from the respondent instructing the advocate to draw up and prepare the three legal documents namely the deed of indemnity, the non disclosure agreement and share transfer agreement. Furthermore the said three legal documents enabled the advocate’s client, John Mwaura in joining the company Greenland Renewable Energy as a director. The advocate drafted the said documents and ensured that 100 shares were allocated to the client. It therefore is evident that the advocate took time in preparation of the three documents ensuring the client’s interests were protected. As such, the sum of Kshs. 300,000/- in my view is reasonable. The respondent has not shown that the said sum is exorbitant but rather it has proposed an amount it considers as reasonable. I therefore, hold the view that the respondent has failed to demonstrate that the taxing master committed an error of principle, or that the taxed amount was manifestly excessive so as to justify interference by this court. 45.Thus it is my considered view that the reference dated 7th April 2026 lacks merit and is hereby dismissed. The bill is hereby taxed at Kshs. 348,000/-. It is noted that the certificate of taxation was issued on 31st March 2026. 46.Taxation is a matter that is guided by the Advocates Act and the Advocates Remuneration Order, Section 51(2) of the Advocates Act which provides that:-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. 47.The above provision is clear that the certificate of costs once issued by the taxing officer is final unless set aside or altered by the court. The court may also make an order that judgment be entered in terms of the amount in the certificate of costs in the case of an advocate client bill of costs. 48.I have considered the application dated 7th April 2026 and find it not merited. It is hereby dismissed with costs to the applicant. 49.The application dated 1st April 2026 is hereby allowed and judgment is hereby entered in favour of the Advocate/Client for Ksh.174,000 with interest at court rates until payment in full. 50.The costs of the application dated 1st April 2026 shall go to the applicant. 51.It is hereby so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 18TH DAY OF JUNE 2026.F. MUCHEMIJUDGE