Mwangi v BO Akang'o Advocates (Miscellaneous (Reference) Civil Application E101 of 2026) [2026] KEHC 12276 (KLR) (30 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAKURU** **MISC. (REFERENCE) APPLICATION NO. E101 OF 2026** **IN THE MATTER OF THE ADVOCATE-CLIENT BILL OF COSTS** **IN THE MATTER OF REFERENCE FROM THE RULING DATED 24TH MARCH, 2026 IN HCF MISC NO. E013 OF 2025** **BETWEEN** **SUSAN WAIRIMU MWANGI.....................................APPLICANT** **VERSUS** **B. O. AKANG'O ADVOCATES..............................RESPONDENT** **RULING** 1. Before this Court is a Chamber Summons dated 7th April, 2026, brought under Paragraph 11(2) and 13A of the Advocates (Remuneration) Order, 2014, and all other enabling provisions of the law. The Applicant seeks orders that: 1. ***Spent.*** 2. ***Spent.*** 3. ***The decision of the Taxing Master dated 24th March, 2026 delivered by Hon. Christine Menya in Nakuru HCFMISC No. E014 of 2025 with respect to Items 1, 3, 4, 5 and 6 be set aside;*** 4. ***In the alternative, the Honorable Court be pleased to order that the Respondent's Bill of Costs dated 26th March, 2025 with respect to Items 1, 3, 4, 5 and 6 be taxed afresh by another Taxing Officer;*** 5. ***The costs of this application be provided for.*** 2. The application is premised on the grounds set out in the Chamber Summons and is supported by the annexed affidavit of SUSAN WAIRIMU MWANGI, the Applicant herein, sworn on even date and written submissions dated 23rd June 2026. 3. The gravamen of the Applicant's complaint is that the Taxing Master proceeded on wrong principles of law and fact by relying on an unserved valuation report to ascertain the value of the estate, thereby awarding instruction fees and getting-up fees that are manifestly excessive and contrary to the provisions of the Advocates Remuneration Order. 4. The application is opposed by the Respondent vide a replying affidavit sworn on 23rd April, 2026 by BENARD OCHIENG AKANG'O, the Respondent herein, and written submissions filed on 2nd July, 2026. 5. The Applicant's case is set out in her Supporting Affidavit. She avers that the Taxing Master delivered a ruling on 24th March, 2026, arising from Nakuru Succession Cause No. 10 of 2019, in which the Respondent acted as her counsel. The Taxing Master awarded the Respondent a sum of Kshs. 2,040,000/= as instruction fees based on a valuation report dated 24th May, 2025. The Taxing Master further awarded Kshs. 1,000,000/= for filing an application for confirmation of grant, Kshs. 500,000/= for each of the chamber summons applications, and Kshs. 100,000/= for the rectification application. 6. The Applicant's complaint is that the valuation report dated 24th May, 2025, was never served upon her, and as such, she was denied an opportunity to examine the report, challenge its contents, or tender a contrary valuation. The Applicant contends that the Taxing Master erred in adopting a valuation report unilaterally procured by the Respondent, which was not part of the pleadings, sanctioned by court, or agreed upon by the parties. The Applicant further contends that the Taxing Master failed to appreciate that the value of the estate ought to have been derived from the pleadings, inventory of assets, accounts filed in court, or a duly accepted valuation. 7. The Applicant submits that the reliance on an unserved and unproven valuation report constituted an error in principle warranting the intervention of this Honorable Court. On the quantum of the awards, the Applicant submits that the Taxing Master was misguided in rendering filing fees for applications for confirmation of grant, chamber summons, and rectification of grant at Kshs. 2,100,000/= yet Paragraph 1(c) of Schedule 10 provides for Kshs. 15,000 for an uncontested grant. The Applicant submits that the award of the Taxing Master contradicts the spirit and principle of the Advocates Remuneration Order with regard to fair and reasonable remuneration of advocates. 8. The Respondent's case is set out in the Replying Affidavit of Benard Ochieng Akang'o. He avers that the impugned ruling taxed the bill at Kshs. 17,183,057/=. On the valuation report, the Respondent contends that the report was duly filed with the submissions in the CTS and was accessible to both parties. The Respondent argues that failure of service does not impact the Taxing Officer's assessment of the bill of costs. The Respondent further argues that since the value of the estate was not specified in the pleadings, all parties had a duty to assist the court. The Applicant had an equal opportunity to file her own valuation report but failed to do so. The Respondent contends that the court was therefore entitled to rely on the valuation report as the only material before it on the value of the subject matter. 9. I have carefully considered the application, the affidavits, the written submissions by both parties,and the applicable law. The principles governing references from taxation are well settled. The Court of Appeal in ***Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR*** held that where an error of principle is established, the Judge is entitled to interfere with the taxation. The Court of Appeal in ***Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd & Others [1972] EA 162*** outlined the principles of taxation as follows: " (a) That costs should not be allowed to rise to such a level as to confine access to justice as to the wealthy, (b) that a successful litigant ought to be fairly reimbursed for the cost he has had to incur, (c) that the general level of remuneration of Advocates must be such as to attract recruits to the profession, (d) so far as practicable there should be consistency in the award made and (e) The court will only interfere when the award of the taxing officer is so high or so low as to amount to an injustice to one party." 10. In ***Joreth Ltd v Kigano & Associates [2002] 1 EA 92***, the Court of Appeal acknowledged that in assessing instruction fees, the value of the subject matter is relevant but that there are other considerations to be made where the value cannot be ascertained; the court noted thus: ***"We would at this stage point out that the value of the subject matter of a suit for the 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 so ascertainable the taxing officer is entitled to use his discretion to assess such instruction fee as he considers just, taking into account, amongst other matters, the nature and 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."*** 11. In **First American Bank of Kenya Ltd v Shah & Others [2002] eKLR**, the High Court addressed the principles governing references from taxation. Justice Ringera held that a Judge will not interfere with the exercise of discretion by a Taxing Officer unless it is shown that the Taxing Officer erred in principle in assessing the costs. The court stated that if the costs allowed are so manifestly excessive as to justify an inference that the taxing officer acted on erroneous principles, then the Judge may interfere with the taxation. The court further held that the instruction fees is earned over the entire period of the case and matures on conclusion of the case; it is not earned in its entirety on receipt of instructions. 12. The first issue for determination is whether the Taxing Master erred in principle by relying on an unserved valuation report. The Applicant contends that the Taxing Master erred by relying on a valuation report which was never served upon her. The Respondent contends that the report was duly filed with the submissions in the CTS and was accessible to both parties, and that failure of service does not impact the Taxing Officer's assessment. The right to a fair hearing is a fundamental right enshrined in Article 50(1) of the Constitution of Kenya, 2010. The rules of natural justice require that no party be condemned unheard. A party is entitled to know the evidence to be used against them and to have an opportunity to challenge that evidence. The reliance on evidence not disclosed to the opposite party constitutes a denial of the right to a fair hearing and amounts to a fundamental error in principle . While the valuation report may have been accessible on the CTS, accessibility is not synonymous with service. Service is the primary mechanism by which a party is brought to notice of adverse evidence. The Respondent has not demonstrated that the Applicant had actual notice of the valuation report or that she waived her right to challenge it. In the circumstances, I am persuaded that the failure to serve the valuation report on the Applicant constituted a procedural irregularity that, in the context of these proceedings, amounts to an error in principle. The Applicant was denied the opportunity to interrogate the report, challenge the valuation methodology employed, or tender a contrary valuation. 13. The second issue for determination is whether the Taxing Master erred in principle by failing to ascertain the value of the subject matter from the pleadings and court record. The Applicant contends that the Taxing Master should have derived the value of the estate from the pleadings, inventory of assets, or accounts filed in court. The Respondent argues that since the value of the estate was not specified in the pleadings, the Taxing Master was entitled to rely on the valuation report as the only material before her. The law is settled that the value of the subject matter for purposes of taxation ought to be determined from the pleadings, judgment, settlement, or other documents properly forming part of the court record. In ***Joreth Ltd v Kigano & Associates [2002] 1 EA 92***,(supra) the Court of Appeal held that the value of the subject matter for purposes of taxation ought to be determined from the pleadings, judgment or settlement, but if the same is not ascertainable, the Taxing Officer is entitled to use his discretion . The Joreth principle establishes a hierarchy: the Taxing Officer must first look to the pleadings, judgment, or settlement to ascertain the value. Only if the value is not ascertainable from these sources does the Taxing Officer have discretion to use other evidence. In the present case, the Taxing Master did not demonstrate that she first attempted to ascertain the value from the pleadings and court record before resorting to the valuation report. The Respondent in his replying affidavit admits that the value of the estate was not specified in the pleadings. However, that does not automatically entitle the Taxing Master to rely on a unilateral valuation report. The Taxing Master had a duty to consider the pleadings and court record first, and only resort to other material if the value remained unascertainable. The record before me does not demonstrate that this exercise was undertaken. I therefore find that the Taxing Master erred in principle by relying on a unilateral and unserved valuation report without first ascertaining whether the value of the estate could be derived from the pleadings and court record. 14. The third issue for determination is whether the awards under Items 3, 4, 5 and 6 were manifestly excessive and contrary to the Advocates Remuneration Order. The Applicant contends that the awards are excessive and unsupported by the applicable provisions of the Advocates Remuneration Order. The Applicant specifically refers to Paragraph 1(c) of Schedule 10, which provides a fee of Kshs. 15,000/= in respect of an uncontested grant. The Respondent argues that the awards were justified by the contested nature of the proceedings and the high value of the estate. The Taxing Officer awarded Kshs. 1,000,000/= for filing application for confirmation of grant, Kshs. 500,000/= for each chamber summons application, and Kshs. 100,000/= for the rectification application. In ***Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd & Others [1972] EA 162***(Supra), the Court of Appeal emphasized that costs should not be allowed to rise to a level that would confine access to justice to the wealthy and that taxation must be based on proper principles . While the Taxing Officer has discretion under Paragraph 1(c)(ii) of Schedule 10 to award a fee she considers reasonable for a contested confirmation application, the exercise of that discretion must be justified. The Taxing Officer should have demonstrated why an award of Kshs. 1,000,000/= was reasonable given the nature of the proceedings. The mere fact that the proceedings were contested, without more, does not justify a departure of this magnitude from the standard scale. The Taxing Master did not, in her ruling, set out the specific complexities or exceptional circumstances that would justify such significant awards. The awards of Kshs. 1,000,000/=, Kshs. 500,000/=, and Kshs. 100,000/= for what appear to be relatively routine applications in a succession cause are, on the face of it, manifestly excessive and disproportionate. I therefore find that the Taxing Master failed to properly exercise her discretion with respect to Items 3, 4, 5 and 6, and that the awards made were contrary to the principles of fair and reasonable remuneration set out in the Advocates Remuneration Order and the case law. 15. The fourth issue for determination is whether the Applicant was accorded a fair opportunity to challenge the valuation report. The Applicant avers that she was never served with the valuation report. The Respondent argues that the report was filed in the CTS and was therefore accessible to the Applicant. The concept of fair hearing under Article 50(1) of the Constitution requires that a party be given adequate notice of the evidence to be used against them. The fact that a document is accessible on the CTS does not, by itself, constitute proper notice, especially where the party has not been notified of its existence. The Respondent has not demonstrated that the Applicant was aware of the report and chose not to challenge it. In the absence of such evidence, I find that the Applicant was denied a fair opportunity to challenge the valuation report. This is particularly significant because the valuation report was the sole basis for the assessment of instruction fees. The Applicant was entitled to challenge the valuation methodology, the valuation date, and the professional competence of the valuer. She was also entitled to tender a contrary valuation. Denying her this opportunity constitutes a fundamental error in principle. 16. The fifth issue for determination is the proper remedy. The Applicant seeks to have the decision of the Taxing Master set aside and, in the alternative, to have the Bill of Costs taxed afresh before a different Taxing Officer. The principles governing the remedy on a reference are well settled. Where an error of principle is established, the High Court is entitled to interfere and either reassess the impugned items or remit the bill for taxation afresh. In Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR, (supra)the Court of Appeal held that where an error of principle is established, the Judge is entitled to interfere with the taxation . The Court of Appeal further held in the same case that if a judge on reference from a taxing officer finds that the taxing officer has committed an error of principle, the general practice is to remit the question of quantum for the decision of taxing officer . I am of the view that setting aside the taxation of Items 1, 3, 4, 5 and 6 and remitting the bill for fresh taxation before a different Taxing Officer is the appropriate remedy. This will afford both parties an opportunity to present their respective cases, including any valuation evidence, before a Taxing Officer who will approach the matter afresh. 17. In light of the foregoing, I make the following orders; 1. ***The decision of the Taxing Master dated 24th March, 2026, in respect of Items 1, 3, 4, 5 and 6 of the Advocate-Client Bill of Costs dated 26th March, 2025, is hereby set aside.*** 2. ***The Respondent's Bill of Costs dated 26th March, 2025, is hereby remitted back to the Taxing Officer for fresh taxation before a different Taxing Officer, limited to Items 1, 3, 4, 5 and 6.*** 3. ***Each party shall bear their own costs of this reference.*** 4. ***The above orders to apply to HCFMISC REFERENCE E102 of 2026 SUSAN WAIRIMU MWANGI V B. AKANGO ADVOCATES.*** 18. It is so ordered. **Dated, signed and delivered at Nakuru this 30th day of July, 2026**. **J. K. SERGON** **JUDGE** **In the presence of:** Jamleck/Rutoh C/A N/A for the Applicant